HUC 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A  TREATISE 


ON 


PLEADING  AND  PRACTICE 


IN   COURTS  OF   RECORD  IN 


CIVIL  CASES  IN  THE  STATE  OF 
OKLAHOMA 

WITH    FORMS 


BY  ARTHUR  B.  HONNOLD 

OF  THE  OKLAHOMA  BAR 

AUTHOR   OF  A  TREATISE  ON  OKLAHOMA  JUSTICE  PRACTICE,  AND  A  TREATISE  ON  WORK- 
MEN ?S  COMPENSATION,   FORMERLY  A  MEMBER  OF  THE  EDITORIAL 
STAFF  OF  THE  WEST  PUBLISHING.  COMPANY 


IN    THREE    VOLUMES 

VOLUME  I 


.    KANSAS  CITY,  MO. 
VERNON  LAW  BOOK  COMPANY 
1922 


T 


\J.\ 


COPYBIGHT,  1922 

BY 
VERNON  LAW  BOOK  COMPANY 

(HON.PL.&  PBAC.) 


- 


PREFACE 


THOUGH  Oklahoma  is  one  of  the  newest  states,  the  Code  of  Civil  Prac- 
tice adopted  from  Kansas  and  the  changes  made  since  its  adoption 
in  the  Territory  have  been  so  thoroughly  tried  out  and  so  frequently 
construed  by  the  .highest  courts  in  clear,  analytical  opinions  that 
a  comprehensive  work  on  procedure  and  practice  can  now  be 
written,  based  on  controlling  authorities. 

Such  a  work  is  here  attempted.  Every  statute  relating  in  any 
way  to  procedure  is  quoted  in  full  in  connection  with  the  treatment 
of  the  subject  td  which  the  statute  relates.  Every  Kansas  and 
Oklahoma  case  containing  any  discussion  of  procedural  matters  has 
been  examined  and  the  law  gleaned  therefrom,  in  so  far  as  it  is 
applicable  to  the  practice  in  Oklahoma  at  the  present  time.  A  stu- 
dious effort  has  been  made  to  eliminate  all  decisions  which  are  now 
inapplicable,  or  which  have  been  reversed  or  overruled. 

Although  the  Code  of  Civil  Procedure  was  adopted  with  a  view  of 
simplifying  and  stabilizing  the  rules  of  procedure,  all  of  these  rules, 
with  their  numerous  qualifications  and  applications,  cannot  be  said  to 
be  incorporated  in  the  statute  as  adopted  by  the  Legislature.  Volumes 
have  been  written  around  a  single  clause  or  section  of  the  Constitution 
of  the  United  States;  likewise,  pages,  if  not  volumes,  could  well  be 
written  around  each  of  various  sections  of  the  Code — all  being  based 
upon  decisions  throwing  light  upon  the  construction  and  application  of 
the  Code  provisions. 

In  the  year  1850,  Mr.  Justice  Selden,  of  the  Supreme  Court  of  New 
York,  said:  "Many  of  the  technical  rules  of  the  common-law  system 
of  pleading  may  well  have  been  considered  as  originating  in,  and  con- 
nected with,  those  distinctions  between  the  different  forms  of  action 
which  were  peculiar  to  that  law.  There  are,  however,  some  of  those 
rules  which  are  so  well  adapted  to  accomplish  the  end  of  all  pleading 
that  I  should  find  it  difficult  to  persuade  myself  that  the  Legislature 
could  have  intended  to  abrogate  them." 

The  evil  of  the  common-law  system  of  pleading,  depending  upon  a 
system  of  rules  necessarily  artificial  and  complex,  in  consequence  of 

(iii) 


IV  PREFACE 

which,  either  through  ignorance  or  mistake,  an  issue  would  be  formed 
not  involving  the  real  merits  of  the  controversy,  and  a  decision  be  pro- 
duced contrary  to  justice  and  equity,  was  originally  sought  to  be  reme- 
died by  allowing  the  widest  scope  in  the  proof  of  facts  not  strictly  in 
issue.  This  remedy  has  been  repudiated  by  the  Code,  and  this  evil 
remedied  in  large  part  by  the  liberal  allowance  of  amendments. 

The  Code  abolishes  the  distinctions  between  actions  at  law  and  suits 
in  equity,  and  the  course  of  proceeding  in  both  cases  is  now  the  same. 
Whether  the  action  depends  upon  legal  or  upon  equitable  principles,  it 
still  remains  .a  civil  action,  to  be  commenced  and  prosecuted  without 
reference  to  this  distinction.  Although  this  is  true  in  reference  to  the 
form  and  course  of  proceeding  in  the  action,  the  principles  determina- 
tive of  the  rights  of  the  parties  remain  unchanged. 

The  more  liberal  view  of  the  Code  is  that  it  is  based  upon  an  entirely 
new  theory,  with  different  ends  to  accomplish,  and  that  it  is  better, 
in  order  to  carry  out  its  spirit,  to  consider  it  as  a  new  theory,  to  be 
construed  and  carried  into  e'ffect  upon  principles  peculiar  to  itself. 

If  the  attorneys  of  to-day  were  first  made  familiar  with  the  rules  of 
common-law  pleading  as  they  existed  in  the  early  part  of  the  last  cen- 
tury, it  would  be  well  to  adopt  this  view ;  but  so  many  rules,  many  of 
which  grew  out  of  the  old  rules,  have  been  built  up  around  the  provi- 
sions of  the  Code,  in  such  way  as  to  become  in  effect  a  part  thereof, 
that  the  question  whether  these  rules  are  the  same  as  those  existing 
at  common  law  is  of  minor  importance.  In  other  words,  it  is  generally 
enough  to  know  that,  ever  since  the  adoption  of  the  Code,  we  have  been 
borrowing  from  the  common  law  to  supplement  and  clarify  the  Code ; 
but  the  extent  to  which  we  have  borrowed  is  not  of  any  great  impor- 
tance, since  the  majority  are  more  familiar  with  these  rules  than  with 
the  original  rules  of  the  common  law.  However,  familiarity  with  the 
common-law  rights  of  action  is  important.  Mr.  Justice  Burwell,  of  the 
Supreme  Court  of  the  Territory  of  Oklahoma,  well  said  that,  "while 
the  forms  of  actions  have  been  changed,  we  must  not  forget  that  the 
right  of  any  particular  action,  as  it  existed  at  common  law,  remains  the 
same,  unless  abridged  or  denied  by  the  statute ;  and,  while  the  common- 
law  forms  of  action  have  been  abolished,  the  rights  of  such  actions 
continue  to  exist,  but  under  a  different  name.  Every  cause  of  action 
that  existed  under  the  common-law  forms,  which  has  not  been  abolish- 
ed, still  exists  under  the  name  of  a  'civil  action.'  The  statute  did  not 
abolish  common-law  causes  of  action ;  it  only  abolished  their  forms  and 
grouped  them  under  one  head." 


PREFACE  V 

This  work  may  be  said  to  contain  two  indexes;  one  the  table 
of  contents  at  the  beginning  of  the  work,  and  the  other  the  index 
proper  at  the  close.  It  also  contains  a  table  of  statutes  and  con- 
stitutional provisions,  showing  the  section  of  the  work  in  which 
each  such  statute  or  provision  is  cited.  It  also  contains  a  table  of 
cases,  in  which  are  arranged  in  alphabetical  order  all  of  the  several 
thousand  cases  cited. 

The  arrangement  and  general  form  of  the  work  is  the  result  of 
several  years'  experience,  and,  if  it  is  found  to  be  logical  and  work- 
able, the  lawyer  should  be  able,  with  the  other  aids  above  mention- 
ed, to  find  in  these  volumes  what  he  wants,  with  a  minimum  of 
effort,  provided  it  is  within  the  scope  of  the  work. 

A  sample  of  every  form  suggested  by  the  text,  or  the  statutes 
quoted,  is  contained  in  these  volumes,  and  it  is  hoped  that  they  will 
be  of  aid,  at  least,  in  the  preparation  and  the  checking  of  forms 
prepared  by  the  lawyer. 

I  desire  to  acknowledge  an  indebtedness  for  valuable  assistance 
given  by  my  law  partner,  Mr.  Herbert  D.  Mason,  and  also  by  the  fol- 
lowing attorneys:  Mr.  Kenneth  Lawing,  who  assisted  in  the  prep- 
aration of  the  entire  work;  Mr.  L.  G.  Williams,  who  assisted  in  the 
preparation  of  the  forms;  Mr.  Roscoe  E.  Harper,  Professor  of  Law 
of  the  Oklahoma  University,  who  assisted  on  the  chapter  on  Appeal 
and  Review,  and  Mr.  Elton  B.  Hunt,  who  assisted  in  the  portion 
of  the  work  relative  to  certain  special  proceedings  and  special  writs. 

ARTHUR  B.  HONNOLD. 

TULSA,  OKLAHOMA,  January  2,  1922. 


TABLE  OF  CONTENTS 

VOLUMES  I  TO  III 


VOLUME  I 


CHAPTER  I 

COURTS  AND  COURT  OFFICERS 

Sections 

1-142.  Article  I. — Courts  and  judges. 

1-31.  Division  I. — Relating  to  code  practice  in  general. 

32-45.  Division  II. — Judges  in  general. 

46-81.  Division  III. — District  courts  and  judges. 

82-89.  '  Division  IV. — Superior  courts  and  judges. 

90-113.  Division  V. — County  courts  and  judges. 

114-142.  Division  VI. — Supreme  Court  and  judges. 

143-198.  Article  II. — Other  court  officers. 

143-145.  Division  I. — In  general. 

146-162.  Division  II. — Court  clerks. 

163-172.  Division  III. — Sheriffs  and  other  peace  officers. 

173-198.  Division  IV.— Attorneys. 


ARTICLE  I 
COURTS  AND  JUDGES 

DIVISION  I.—  RELATING  TO   CODE  PRACTICE  IN  GENERAL 

1.  Courts  open  for  administration  of  justice. 

2.  Due  process. 

3.  Judicial  power  vested  where. 

4.  Judges  —  Conservators  of  the  peace. 

5.  Title  of  chapter. 

6.  Prior   decisions  and  precedents  —  Stare  decisis. 

7.  Decisions  of  federal  courts, 

8.  Common  law. 

9.  Obiter  dictum. 

10.  Law  of  the  case. 

11.  Statutes  and  construction. 

12.  Erroneous  words  and  punctuation. 

13.  Rule  of  ejusdem  generis. 

14.  Statute  construed  as  a  whole. 

15.  Statutes  construed  together  or  in  the  light  of  each  other. 


HON.PL.&  PEAC. 


(vii) 


viii  .  TABLE  OF  CONTEXTS 

Sections 

16.  Administrative  construction. 

17.  Provisos  or  exceptions. 

18.  Statute  adopted  from  another  state. 

19.  Adjournment  by  sheriff. 

20.  Publications. 

21.  Affirmation. 

22.  Computation  of  time. 

23.  Surety — Justification.  , 

24.  Qualifications. 

25.  Real  estate  mortgage  as  bond. 

26.  Valuation  of  real  estate. 

27.  False  valuation — Penalty. 

28.  Action  on  bond. 

29.  Several  actions  on  security. 

30.  Submission  of  controversy. 

31.  Impeachment  and  removal  from  office. 

DIVISION  11. — JUDGES  IN  GENERAL 

32.  As  public  officer. 

33.  Judge  pro  tempore. 

34.  Waiver  of  objections. 

35.  Powers  of  special  judges. 

36.  Liabilities. 

37.  Change  of  judge. 

38.  Disqualifications. 

39.  Relationship. 

40.  Bias  and  prejudice. 

41.  Objections  and  procedure. 

42.  Form — Application   for  disqualification  of  judge. 

43.  Waiver  of  disqualifications. 

44.  Acts  of  disqualified  judge. 

45.  Powers  at  chambers. 

DIVISION  111. — DISTRICT  COURTS  AND  JUDGES 

46.  District  court — Where  held. 

47.  Districts  and  judges. 

48.  Sessions — Time  for — Adjournments. 

49.  Change  of  district — Disposition  of  cases  pending. 

50.  Special  terms. 

51.  Adjournment  of  term. 

52.  Two  or  more  judges  sitting  at  same  time. 

53.  Additional  judge. 

54.  District  judges — Expenses. 

55.  Reporter — Appointment — Qualifications. 

56.  Duties  of  court  reporter. 

57.  Salary  and  fees. 

58.  Traveling  expenses. 

59.  Tenure  and  oath  of  office. 

60.  Notes  filed — Admissibility  in  evidence — Transcripts. 

61.  Appeal  to  district  court. 

62.  Party  in  default. 

63.  Who  may  appeal. 


TABLE   OF   CONTENTS  IX 

Sections 

64.  When  appeal  must  be  taken. 

-65.  Appeal  how  taken. 

66.  Appeal  bond. 

67.  Stay  of  execution. 

68.  Commitment — How  stayed. 

69.  Justification  of  sureties — Increased  bond. 

70.  Appeal  bond  form — Action  upon. 

71.  Appeal  not  to  stay  issue  of  letters. 

72.  Appeal  not  to  stay  order  revoking  letters,  (tc. 

73.  Proceedings. 

74.  Powers  of  the  appellate  court. 

75.  Trial  de  novo. 

76.  Penalty  for  neglect  of  county  judge  to  transmit  record. 

77.  Dismissal  of  appeal — Effect — Costs. 

78.  Enforcement  of  decree. 

79.  Executor's  bond  stands  in  place  of  appeal  bond. 

80.  Reversal  for  error  not  to  affect  lawful  acts. 

81.  Rules  of  district  court. 

DIVISION  IV.— SUPERIOB  COURTS  AND  JUDGES 

82.  Superior  courts  in  general. 

83.  Qualifications  of  judges — Term  of  office. 

84.  Election. 

85.  Procedure — Juries — Appeals. 

86.  Court  stenographer. 

87.  Sheriffs — County  attorneys. 

88.  Judge's  salary. 

89.  Transfer  of  causes. 

DIVISION  V.— COUNTY  COTTBTS  AND  JUDGES 

90.  Procedure — Seal. 

91.  Terms  of  court. 

92.  Proceedings  in  vacation — Out  of  court. 

93.  Calendar. 

94.  Stenographer. 

95.  Duties. 

96.  Oath  and  tenure  of  offlce. 

97.  Fees  for  making  transcripts. 

98.  Ex  oiucio  court  clerk. 

99.  Compensation. 

100.  Fees— Record. 

101.  Report  of. 

102.  Fees  paid  to  treasurer. 

103.  Special  court  towns. 

104.  Judge — Term  of  office — Qualification. 

105.  To  give  bond. 

106.  Office  and  records. 

107.  Practice  prohibited. 

108.  Temporary  county  judge. 

109.  How  elected. 

110.  Fee  when  affidavit  of  bias  made. 

111.  County  judge — County  attorney — Salary. 


:  TABLE  OF  CONTENTS 

Sections 

112.  Court  reporters. 

113.  Rules  for  county  court. 

DIVISION  VI.— SUPREME  COURT  AND  JUDCIES 

114.  Membership — Quorum — Eligibility — Term  of  office — Vacancies — Ju- 

risdiction. 

115.  Justices — Judicial  districts — Election — Law  clerks. 

116.  Referees  and  first  law  clerk. 

117.  Chief  justice— Election. 

118.  Vice  chief  justice — Election. 

119.  Justices — Not  to  be  candidate  for  other  office. 

120.  Commencement  of  term. 

121.  Sessions — Opinions. 

122.  Chief  justice — Expiration  of  terms — Election. 

123.  Clerk. 

124.  Law  governing. 

125.  Salaries  of  justices. 

126.  Effect  of  invalidity. 

127.  Jurisdiction — Divisions. 

128.  Appeals  from  county  court. 

129.  Appeals  from  corporation  commission. 

130.  Appeals  from  state  labor  commission. 

131.  Formation  of  new  counties. 

132.  Speedy  hearing. 

133.  Original    jurisdiction — Division    of    assets    and    liabilities    among 

counties. 

134.  Parties — Proceedings. 

135.  Constitution. 

136.  Jurisdiction — Removal  of  state  capitol  and  normal  schools. 

137.  Jury  trial  when. 

138.  Trial. 

139.  Jury — How  selected. 

140.  Costs — Witness  fees. 

141.  Reports. 

142.  Supreme  court  rules. 

ARTICLE  II 

OTHER  COURT  OFFICERS 

DIVISION  1. — JN  GENERAL 

143.  Compensation. 

144.  Deputies — Duties. 

145.  Bailiffs. 

DIVISION  II.— COURT  CLERKS 

14G.  Office— Selection— Eligibility. 

147.  Official  bond— Form. 

148.  Powers  and  duties — Contestants. 

149.  Liabilities. 

150.  Deputies. 

151.  Vacancies. 

152.  Fees  and  salaries. 


TABLE  OF   CONTENTS  XI 

Sections 

153.  Books  to  be  kept. 

154.  Appearance  docket. 

155.  Indorsements. 

156.  Execution  docket. 

157.  Judgment  docket. 

158.  Journal. 

159.  Files. 

160.  Cases — Court  records. 

161.  Application  of  statute. 

162.  Journal  entry — Order  of  sale — Homestead — Insane  spouse. 

DIVISION    III.— SHERIFFS   AND    OTHER   PEACE  OFFICERS 

163.  Sheriffs  and  deputies. 

164.  Service  of  writs  and  process — Amercement. 

165.  Substitute  for  sheriff. 

166.  Fees  and  salaries. 

167.  Power  aud  duty. 

168.  Liability — Amercement. 

169.  Official  bonds. 

170.  Acts  of  deputy. 

171.  Wrongful  attachment. 

172.  Indemnity  bonds. 

DIVISION  IV.— ATTORNEYS 

173.  Who  permitted  to  practice — Examinations  for  admission. 

174.  Applicants  to  conform  to  rules — Fees  for  admission. 

175.  Examination — Commission. 

176.  Qualifications. 

177.  Persons  not  permitted  to  practice. 

178.  Attorneys  from  other  states — How  admitted. 

179.  Oath  upon  admission. 

180.  Foreign  attorneys. 

181.  Duties. 

182.  Power,  duty,  and  liability. 

183.  Implied  authority — Tender — Compromise — Notice 

184.  May  receive  money  for  client. 

185.  Proof  of  authority  to  appear. 

186.  Purchasing  property. 

187.  Lien  for  services — Extent — Notice. 

188.  Fees. 

189.  Enforcement — Compromise  without  notice. 

190.  Amount  which  may  be  recovered. 

191.  May  not  become  surety  in  action  in  which  employed. 

192.  Lien — Release  by  giving  bond. 

193.  Suspension  of  license — Disbarment. 

194.  Causes. 

195.  Defenses — Limitations. 

196.  Proceedings — How  commenced. 

197.  Trial — Judgment. 

198.  Attorney  and  client  in  general. 


Xil  TABLE  OF  CONTENTS 


CHAPTER  II 

ARBITRATION,  COMPROMISE,  AND  SETTLEMENT 

Sections 

199-200.     Article  I.— Arbitration. . 
201-202.    Article  II. — Compromise  and  settlement. 


ARTICLE  I 

ARBITRATION 

199.  In  general. 

200.  Forms. 

ARTICLE  II 

COMPROMISE  AND  SETTLEMENT 

201.  In  general. 

202.  Construction. 

CHAPTER  III 

JURISDICTION 

203-216.    Article  I. — Nature,  scope,  elements,  and  exercise. 

217-247.    Article  II. — Original,  concurrent,  and  appellate  jurisdiction. 

ARTICLE  I 

NATURE,  SCOPE,  ELEMENTS,  AND  EXERCISE 

203.  Jurisdiction  defined. 

204.  Basis  and  elements. 

205.  Original  jurisdiction. 

206.  Scope,  extent,  and  place  of  exercise. 

207.  Territorial  extent. 

208.  Where  parties  reside  or  may  be  found. 

209.  Jurisdiction  of  subject-matter. 

210.  Trusts. 

211.  Consent  and  waiver. 

212.  Ancillary  jurisdiction. 

213.  Rule  of  comity. 

214.  Shown  by  record. 

215.  Determination  of  jurisdiction. 

216.  Objections. 

ARTICLE  II 

ORIGINAL,   CONCURRENT,   AND   APPELLATE   JURISDICTION 

217.  Concurrent  jurisdiction. 

218.  Personal  injuries. 

219.  Appeals— From  police  judges  and  justices  of  the  peace. 

220.  From  town  justice  court. 

221.  From  county  commissioners. 


TABLE  OF   CONTENTS 

Sections 

222.  How  taken. 

223.  State  and  federal  courts. 

224.  Transfer  of  causes. 

225.  Transfer  to  state  courts. 

226.  County  courts — Jurisdiction — Judge  pro  tempore. 

227.  Amount  involved. 

228.  Probate  jurisdiction — Sessions. 

229.  Title  involved. 

230.  Bastardy  proceedings. 

231.  Appellate  jurisdiction. 

232.  District  courts. 

233.  Special  cases. 

234.  Amount  involved. 

235.  Appeals  from  county  court. 

236.  Appeals  in  probate  cases. 

237.  Indians  and   Indian  lauds. 

238.  Indian  lands. 

239.  Misconduct  in  office. 

240.  Taxes  and  assessments. 

241.  Public  lands. 

242.  Vested  when — Exemption  from  taxation. 

243.  Equity. 

244.  Foreclosure. 

245.  Superior  courts. 

246.  Supreme  Court. 

247.  Appeals  from  county  court. 


xiii 


248-264. 
265-273. 


CHAPTER  IV 

VENUE 

Article  I. — Where  actions  brought 
Article  II. — Change  of  venue. 


ARTICLE  I 

WHERE  ACTIONS  BROUGHT 

248.  Where  subject  located. 

249.  Subject-matter. 

250.  Relating  to  real  estate. 

251.  Land  located  in  more  than  one  county — Specific  performance. 

252.  Where  cause  arose. 

253.  Residence  of  parties. 

254.  Domestic  corporation — Insurance  company. 

255.  Foreign  corporations  and  nonresidents. 

256.  Process — Foreign  corporations. 
-  257.             When  charter  revoked. 

258.  Actions  against  guaranty  companies. 

259.  Actions  against  transportation   or  transmission  companies. 

260.  Actions  against  turnpike  companies. 

261.  Action  against  board  of  county  commissioners. 


XIV  TABLE  OF   CONTENTS 

Sections 

262.  Divorce  and  annulment. 

263.  Other  actions. 

264.  Waiver  of  right. 

ARTICLE  II 

CHANGE  OF  VENUE 

265.  Change  of  venue. 

266.  Discretion. 

267.  Grounds — Disqualification  of  judge. 

268.  Local  prejudice. 

269.  Application. 

270.  Hearing  and  order. 

271.  Waiver. 

272.  Proceedings  after  change. 

273.  Form. 

CHAPTER  V 

REMEDIES  AND  RIGHTS 

274-295.    Article  I.— In  general. 

296-298.    Article  II.— Election  of  remedies. 

ARTICLE  I 

IN  GENERAL 

274.  Remedies. 

275.  Cumulative  remedy. 

276.  Actions  and  special  proceedings. 
l'~7.     Distinctions  abolished. 

278.  Determination  of  character. 

N279.  Common-law  actions. 

280.  Tort  and  contract. 

281.  Illegal  transactions. 

282.  Injury  without  liability. 

283.  '  Tenders. 

284.  Right  of  action — Warrantee — Costs  and  expenses. 

285.  Action  on  surveyor's  bond. 

286.  Surety  against  principal. 

287.  Money  received. 

288.  Conditions  precedent — Warranty. 

289.  Death  pending  action. 

290.  Claim  against  estate. 

291.  Usury. 

Claim  against  municipality. 

293.  Offer — Demand — Notice. 

294.  Taxes. 

295.  Insurance. 


TABLE  OF  CONTENTS 


XV 


ARTICLE  II 

ELECTION  OF  REMEDIES 

Sections 

296.  Necessity. 

297.  Effect. 

298.  What  constitutes. 


299-310. 
311-328. 


299. 
300. 
301. 
302. 
303. 
304. 
305. 
306. 
307. 
308. 
309. 
310. 


CHAPTER  VI 

ABATEMENT,  SURVIVAL  AND  REVIVOR 

Article  I. — Survival  and  abatement 
Article  II. — Revivor. 

ARTICLE  I 
SURVIVAL  AND  ABATEMENT 

What  actions  survive. 
Death  or  assignment. 
Death  of.  plaintiff. 
Death  of  defendant. 
Personal  injuries. 
Action  for  wrongful  death. 

Who  may  sue — Amount  of  recovery. 
Party  in  representative  capacity — Change. 

Receiver. 

Transfer  of  interest. 
Where  action  does  not  survive. 
Abatement — Pendency  of  another  action. 


ARTICLE  II 
REVIVOR 

311.  Where  action  survives  upon  death  of  party. 

312.  Proceedings. 

313.  Who  may  move. 

314.  Consent  or  notice. 

315.  Notice  by  publication.  , 

316.  Death  of  plaintiff. 

317.  Death  of  defendant. 

318.  Limitation. 

$19.  Amendment  to  petition. 

320.  Time  of  order. 

321.  Delay  to  revive. 

322.  Vacation  of  order. 

323.  Objections  and  waiver. 

324.  Action  dismissed,  when. 

325.  At  instance  of  defendant. 

326.  Trial. 

327.  Death  after  judgment. 

328.  Revivor  of  judgment — Forms. 


XVI 


TABLE  OF  CONTENTS 


CHAPTER  VII 

LIMITATIONS 

Sections 

329-342.  Article  I. — Purpose,  validity,  and  operation. 

343-344.  Article  II. — Commencement  of  action. 

345-360.  Article  III. — When  statute  begins  to  run. 

361-378.  Article  IV. — Limitation  periods. 

379-391.  Article  V. — Suspension  and  tolling  of  statute. 

392-397.  Article  VI. — Extension  and  waiver. 

398-400.  Article  VII.— Contract  limitations. 


ARTICLE  I 

PURPOSE,  VALIDITY,  AND  OPERATION 

329.     Purpose  and  validity  of  statutes. 
'330.    What  law  governs — Foreign  laws. 

331.  Construction  and  operation. 

332.  Retroactive  operation. 

333.  Actions  already  barred. 

334.  As  against  state,  municipality,  or  public  officers. 
.335.  Will  contest. 

336.  As  to  defenses  in  general. 

.'!.'!7.  As  to  set-off  or  counterclaim. 

338.  Computation  of  time. 

339.  Bar  absolute — Operation  in  general. 

340.  Debt  of  husband  and  wife. 

341.  Replevin. 

342.  Foreclosure. 

ARTICLE  II 

COMMENCEMENT  OF  ACTION 

343.  When  action  commenced. 

344.  Amendment. 

ARTICLE  III 
WHEN    STATUTE   BEGINS    TO   RUN 

345.  Accrual  of  right  or  defense— In  general. 

346.  Real  property. 

347.  Personal  property. 

348.  Contracts  in  general. 
•'!»'•».  Continuing  contracts. 

860.  Scvcrable  contracts  and  installments. 

::"»!.  Bonds. 

Covenants — Mortgage  deed. 

Municipal  warrants. 
••••"•4.  Torts. 

Guaranty. 

Malfeasance  in  office. 


TABLE  OP   CONTENTS  XV11 

Sections 

357.  Statutory  liability. 

358.  Equitable  actions. 

359.  Conditions  precedent. 

360.  Trusts. 

ARTICLE  IV 
LIMITATION  PERIODS 

361.  Application  of  statutes. 

362.  Real  actions. 

363.  Other  actions. 

364.  Fraud. 

365.  Foreign  judgment — Bonds,  etc. 

366.  Action  for  recovery  of  estate  sold  by  guardian. 

367.  Liens. 

368.  Liens  against  railroads. 

369.  Actions  against  notaries. 

370.  Rejected  claim. 

371.  Vacancy  in  administration. 

372.  Action  against  sureties  on  bond. 

373.  Actions  for  wrongful  death. 

374.  Assessments — Suits  to  set  aside. 

375.  Demand — Tender. 

376.  Actions  for  usurious  interest. 

377.  Tax  deed. 

378.  Nonresident  alien  landowners. 


ARTICLE  V 

SUSPENSION  AND  TOLLING  OF  STATUTE 

379.  Suspension  of  statute  in  general. 

380.  Disability. 

381.  Infancy. 

382.  Person  of  unsound  mind. 

383.  Suspension  of  statute  by  death. 

384.  Absence  or  flight. 

385.  Nonresidence. 

386.  Concealment. 

387.  Of  person. 

388.  Return. 

389.  Fraud  or  fault. 

390.  Ignorance,  mistake,  and  duress. 

391.  Revivor. 

ARTICLE  VI 
/ 

EXTENSION  AND  WAIVER 

392.  Failure  otherwise  than  on  merits. 

393.  Extension. 

394.  Acknowledgment. 

395.  Extension  agreement 

HON.PL.&  PRAC.— b 


XV111 

Sections 
396. 


TABLE  OF   CONTENTS 


Part  payment. 


397.     Waiver  of  limitations. 


ARTICLE  VII 

CONTRACT  LIMITATIONS 

398.  In  general. 

399.  Insurance  policy. 

100.  Mutual  accident  and  sickness  insurance. 


CHAPTER  VIII 

PARTIES 

401-406.    Article  I.— In  general. 
407-423.     Article  II.— Plaintiff. 
424-436.    Article  III.— Defendant. 
437^39.    Article  IV.— Intervenes 
440-443.    Article  V.* — Defects,  objections,  and  amendments. 


ARTICLE  I 

IN  GENERAL 

401.  Designation  of  parties. 

402.  Counties — Dental  board. 

403.  Married  women. 

404.  Joinder — Necessary  parties. 

405.  Where  parties  numerous. 

406.  Style. 

ARTICLE  II 

PLAINTIFF 

407.  Real  party  in  interest. 

408.  Joinder. 

409.  New  party. 

410.  Capacity  to  sue. 

411.  Corporations. 

In  particular  cases. 

413.  Creditors. 

414.  Stockholders'  suit. 

415.  Insurance. 

416.  Taxpayers— Injunction. 

417.  Assignee  and  assignor. 

418.  Persons  not  personally  interested. 

419.  Guardian. 

420.  Infants— Wards. 

421.  Tenants  in  common. 

422.  Government  and  governmental  agencies. 

423.  Action   for  death. 


TABLE   OF   CONTENTS 


XIX 


ARTICLE  III 

DEFENDANT 

Sections 

424.  Necessary  and  proper  parties  defendant 

425.  Receiver. 

426.  Liens. 

427.  Joinder. 

428.  Defendants  severally  liable. 

429.  Infants. 

430.  Guardian  ad  litem 

431.  Husband  and  wife. 

432.  State  as  defendant. 

433.  Change  of  parties  and  new  parties. 

434.  Substitution— Plaintiff. 

435.  Disclaimer. 

436.  Substitution  of  judgment  creditor. 


ARTICLE  IV 

INTERVENER 

437.  Interplea — Affidavit — Trial. 

438.  Pleading. 

439.  Cases  outside  statute. 

ARTICLE  V 
DEFECTS,  OBJECTIONS,  AND  AMENDMENTS 

440.  Want  of  interest  or  capacity. 

441.  Nonjoinder. 

442.  Misjoinder. 

443.  Amendment. 

CHAPTER  IX 

COMMENCEMENT  OF  ACTION 

444-450.  Article  I. — Accrual  of  cause. 

451-505.  Article  II. — Process. 
451-460.  Division  I. — In  general.  ! 

461-489.  Division  II. — Service  and  return. 

490-500.  Division  III. — Service  by  publication. 

501.  Division  ,1V. — Exemption  from  service. 

502-505.  Division  V. — Objections  and  amendments. 

506-511.  Article  III. — Appearance. 

ARTICLE  I 

ACCRUAL  OF  CAUSE 

444.  Definition. 

445.  How  action  commenced. 

446.  Effect — Notice  to  third  persons. 


XX  TABLE  OF  CONTENTS 

Sections 

447.  Premature  actions. 

448.  Insurance. 

449.  Waiver. 

450.  Cure  of  defect. 

ARTICLE  II 

PROCESS 

DIVISION  I.— IN  GENERAL 

451.  Definition. 

452.  Style  of  process. 

453.  Necessity  and  use  of  process. 

454.  Issuance  of  summons. 

455.  To  another  county. 

456.  Prsecipe — Form. 

457.  Form  and  requisites. 

458.  Indorsements. 

459.  Alias  summons. 
(60.  Abuse  of  process. 

DIVISION  II.— SERVICE  AND  RETURN 

461.  In  general. 

462.  Indorsement. 

463.  Acceptance  of  service  and  appearance. 

464.  By  whom  served. 

465.  Service  on  only  part  of  defendants. 

466.  Effect  of  judgment. 

467.  Manner  of  service. 

468.  Validity  and  effect  of  service. 

469.  Service  out  of  state. 

470.  Service  on  corporation. 

471.  On  foreign  corporation. 

472.  On  insurance  company. 

473.  Insurance  commissioner. 

474.  Insurance  board. 

475.  On  railroad  company  and  stage  line — Agent. 

476.  Where  no  agent  appointed. 

477.  Where  personal  service  impossible. 

478.  Actions  against  counties. 

479.  Service  on  infant. 

480.  Service  on  sheriff. 

481.  On  inmates    f  hospitals  for  insane. 

482.  Notice  or  process  issued  by  state  board  of  arbitration. 

483.  County  court. 

484.  Return. 

485.  Fees. 

486.  Conclusiveness. 

487.  Entering  return. 

488.  Evidence  of  service. 

489.  Forms. 


TABLE  OF  CONTENTS 


XXI 


DIVISION  III. — SERVICE  BY  PUBLICATION 
Sections 

490.  In  general. 

491.  Service  by  publication — When  authorized. 

492.  In  what  actions  authorized. 

493.  On  whom  authorized. 

494.  Unknown  heirs  or  devisees. 

495.  Affidavit— Forms. 

496.  Divorce. 

497.  Order. 

498.  Publication  notice — Form. 

499.  Mailing  with  petition. 

500.  Proof  of  publication. 

DIVISION  IV. — EXEMPTION  FBOM  SERVICE 

501.  Persons  attending  court — Witnesses. 

DIVISION  V.— OBJECTIONS  AND  AMENDMENTS 

502.  Motion  to  quash — Form. 

503.  Amendment. 

504.  Where  service  by  publication. 

505.  Waiver  of  objections. 


ARTICLE  III 

APPEARANCE 

506.  For  infant. 

507.  General  appearance. 

508.  Special  appearance. 

509.  Effect. 

510.  Waiver  of  process. 

511.  Objections — Preservation  and  waiver. 


CHAPTER  X 

CONTINUANCE  AND  DISMISSAL 

512-526.     Article  I. — Continuance. 
527-539.    Article  II.— Dismissal. 


ARTICLE  I 

CONTINUANCE 


512.  When  granted — Discretion. 

513.  Stipulation. 

514.  Grounds — Illness  of  party. 

515.  Accident  or  mistake. 

516.  Amendment  of  pleading. 

517.  Absence  of  counsel. 

518.  Depositions. 

519.  Absence  of  witness. 


xxn 


TABLE   OF   CONTENTS 


Sections 

520.  Surprise  at  trial. 

521.  Admissions  to  prevent  continuance. 

522.  Offer  to  confess  judgment. 

523.  Application  and  affidavit — Forms. 

524.  Time  of  making. 

525.  Further  continuances. 

526.  Objections — Waiver. 

ARTICLE  II 
DISMISSAL 

527.  Dismissal  without  prejudice. 

528.  Right — Discretion. 

529.  Involuntary — Discretion — Grounds. 

530.  Process — Pleadings — Non-compliance  with  order 

531.  Continuance. 

532.  Want  of  prosecution. 

533.  Forms — Motion  to  dismiss — Order. 

534.  .reinstatement. 

535.  Dismissal  without  order  of  court. 

536.  Parties. 

537.  Dismissal  as  to  part  of  defendants. 

538.  Trial  of  counterclaim  after  dismissal. 

539.  Jurisdiction  subsequent. 


CHAPTER  XI 

PLEADINGS 

540-544.  Article  I. — In  general. 

545-55o.  Article  II. — Rules  of  pleading. 

554-561.  Article  III. — Rules  for  construing  pleadings. 

562-587.  Article  IV.— Petition. 

562.  Division  I. — In  general. 

563-579.  Division  II. — Contents,   form,   sufficiency,   and  construction. 

580-585.  Division  III. — Joinder,  splitting,  consolidation,  and  severance. 

586-587.  Division  IV. — Exhibits  and  prayer. 

588-637.  Article  V.— Answer. 

588-302.  Division  I. — Answer  in  general. 

603-606.  Division  II. — General  denial. 

607-615.  Division  III. — Verified  denial. 

616-635.  Division  IV. — Counterclaim  and  set-off. 

636-637.  Division  V. — Unauthorized  pleas. 

638-645.  Article  VI.— Reply. 

646-648.  Article  VII.— Filing  and  subscribing. 

649-660.  Article  VIII. — Amended  and  supplemental  pleadings. 

661-664.  Article  IX. — Defects  and  objections. 

665-702.  Article  X. — Motions  and  orders  thereon. 

665-673.  Division  1. — Motions  in  general. 

674-678.  Division  II.— Orders. 

679-702.  Division  III.— Particular  motions. 


TABLE  OF   CONTEXTS 


XX111 


Sections 
703-721. 
722-733. 
722-728. 
729-732. 
733. 


Article  XI. — Demurrer. 

Article  XII. — Issues,  proof,  and  variance. 

Division  I. — Issues. 

Division  II.— Proof. 

Division  III. — Variance. 


ARTICLE  I 

IN  GENERAL 

540.  Defined. 

541.  Pleadings  allowed. 

542.  Nature,  how  determined. 

543.  Caption — Forms. 

544.  Counties. 

ARTICLE  II 

RULES   OF  PLEADING 

545.  Former  rules  abolished. 

546.  What  must  be  pleaded. 

547.  Special  matters. 

548.  Estoppel. 

549.  Pleading  conclusions  and  law. 

550.  Pleading  evidence. 

551.  Uncertainty  in  pleadings. 

552.  Pleading  in  the  alternative. 

553.  Pleading  by  reference. 


554. 
555. 
556. 
557. 
558. 
559. 
560. 
561. 


ARTICLE  III 

RULES  FOR  CONSTRUING  PLEADINGS 

Liberal  construction. 

General  and  specific  allegations. 

Admissions. 

Presumptions. 

Surplusage. 

Construction  against  pleader. 

Construing  allegations  together. 

Construed  as  of  what  time. 


ARTICLE  IV 

PETITION 

DIVISION  I.— IN  GENERAL 

562.  Copy  for  defendant. 

DIVISION  IT.— CONTEXTS,  FORM,  AND  CONSTRUCTION 

563.  Contents. 

564.  Designation  of  parties. 


XXIV  TABLE   OF   CONTEXTS 

Sections 

565.  Of  unknown  defendant. 

566.  Necessary  allegations. 

567.  Presumptions — Judicial  notice. 

568.  Judgment — Form. 

569.  Form  and  manner  of  allegations.  » 

570.  Election. 

571.  Contractual  conditions  precedent — Form. 

572.  Instrument  for  payment  of  money — Private  statute — Form. 

573.  Libel  or  slander — Form. 

574.  Construction  and  operation. 

575.  Requisites  and  sufficiency. 

576.  Fraud — Form. 

577.  Limitations — Form. 

578.  Matters  necessary  to  be  pleaded. 

579.  Forms — Petitions. 

DIVISION   III.— JOINDER,   SPLITTING,   CONSOLIDATION,   AND    SEVERANCE 

580.  Joinder — Forms  of  motions. 

581.  Separately  stating  and  numbering. 

582.  Where  demurrer  sustained. 

583.  Splitting. 

584.  Consolidation. 

585.  Order — Forms. 

DIVISION  IV.— EXHIBITS  AND  PHAYEB 

586.  Exhibits.- 

587.  Prayer. 

ARTICLE  V 
ANSWER 

DIVISION  I.— ANSWER  IN  GENERAL 

588.  Contents — Forms. 

589.  Construction. 

590.  Joinder. 

591.  Matters  necessary  to  plead. 

592.  Affirmative  defenses — Forms. 

593.  Fraud— Form. 

594.  Limitations — Form. 

595.  Pleading  defenses  in  action  on  note. 

596.  Pleading  attachment  or  garnishment. 

597.  Defenses  in  replevin. 

598.  Adverse  possession. 

599.  Inconsistent  defenses. 

600.  Negative  pregnant. 

601.  Defense  in  libel  and  slander. 

602.  Supplemental  answer. 

DIVISION  II.— GENERAL  DEXIAL 

603.  Effect  and  sufficiency. 

604.  Disclaimer — Form. 

605.  Must  be  entered  for  whom. 

606.  Effect— By  guardian  ad  litem. 


TABLE   OF  CONTENTS  XXV 

DIVISION  III.— VEEIFIED  DENIAL 

sections 

607.  Verification  in  general. 

608.  Who  may  verify. 

609.  How  made— On  belief. 

610.  Execution  of  written  instruments — Indorsement. 

611.  Appointment  or  authority. 

612.  Account. 

613.  Corporation  and  partnership. 

614.  Waiver. 

615.  Forms. 

DIVISION  IV.— COUNTERCLAIM  AND  SET-OFF 

616.  Counterclaim — Nature — Right  to  interpose — Set-off — Limitations. 

617.  Set-off — Right  to  interpose. 

618.  Defined  and  distinguished — Statute  applied. 

619.  Subsisting  right. 

620.  Equity. 

621.  Cross-bill  or  cross-petition. 
c>22.     Landlord  and  tenant. 

623.  Action  against  United  States. 

624.  Cross-demands — Deprivation. 
til'f).  Assignments. 

626.  Definition. 

627.  Parties  and  mutuality. 

02.S.  New  party — Counterclaim. 

629.  New  party— Set-off. 

630.  Form  and  requisites. 

631.  Notice. 

632.  Waiver. 

633.  Withdrawal. 

634.  Neglect  to  claim — Cost. 

635.  Forms. 

DIVISION  V.— UNAUTHORIZED  PLEAS 

636.  Plea  in  abatement. 

637.  Plea  in  bar. 

ARTICLE  VI 

REPLY 

638.  Reply  or  demurrer. 

639.  When  reply  necessary. 

640.  Counterclaim  or  set-off  in  reply. 

641.  Demurrer  or  reply  to  answer  by  codefendant. 

642.  Construction  and  effect. 

643.  Requisites  and  sufficiency — Forms. 

644.  Departure. 

645.  Waiver  of  objections. 

ARTICLE  VH 
FILING  AND  SUBSCRIBING 

646.  Time  for  filing. 

647.  Additional  time — Withdrawal — Service  of  amendment., 

648.  Signing. 


XXVI  TABLE   OF   CONTEXTS 

ARTICLE  VIII 

AMENDED  AND  SUPPLEMENTAL  PLEADINGS 

Sections 

649.  Amendnieut  before  answer. 

650.  Formal  defects. 

651.  Allowance  of  amendment — Discretion — Forms. 

652.  Variance. 

653.  Failure  of  proof. 

654.  Amendment  on  demurrer.   ' 

655.  Continuance  after  amendment. 

656.  Notice  of  amendment. 

657.  Interlineation. 

658.  Subject-matter  of  amendment. 

659.  Supplemental  pleadings. 

660.  Lost  pleadings. 

ARTICLE  IX 
DEFECTS  AND  OBJECTIONS 

661.  Immaterial  errors. 

662.  Cure  of  error. 

663.  Waiver. 

664.  Objection  to  introduction  of  any  evidence — Form. 

ARTICLE  X 

MOTIONS  AND  ORDERS  THEREON 

DIVISION   I. — MOTIONS  IN  GENERAL 

665.  Definition    -Several  objects. 

666.  Notice — Form. 

667.  Service — Return — Form. 

668.  By  officer — Fees. 

669.  Appearance. 

670.  Affidavits  and  pleadings  to  motion. 

671.  Hearing. 

672.  Effect  of  continuance. 

673.  Second  motion. 

DIVISION   II.— ORDERS 

674.  Ruling— Form. 

675.  Law  of  the  case. 

676.  Nunc  pro  tune  order — Form. 

677.  Entry— Notice. 

678.  Vacating  and  modifying. 

DIVISION  III.— PARTICULAR  MOTIONS 

679.  Motion  to  dismiss. 

680.  Motion  for  judgment  on  the  pleadings— Nature — Form, 

681.  Grounds  for  sustaining  or  overruling. 

682.  Departure. 

683.  Judgment  against  verdict. 

684.  Motion  to  strike  from  files — Form. 


TABLE  OF   CONTENTS  XXV11 

Sections 

685.  Affirmative  pleading. 

686.  Defensive  pleadings. 

687.  Demurrer. 

688.  Departure. 

689.  Limitations. 

690.  Amended  pleading. 

691.  Failure  to  amend. 

692.  Motion  to  strike  from  pleading — Form. 

693.  Motion  to  strike  parties — Form. 

694.  Motion  to  make  more  definite  and  certain. 

695.  Form  and  requisites. 

696.  Time  of  making. 

697.  Waiver— Dismissal. 

698.  Motion  to  require  pleader  to  separately  state  and  number. 

699.  Form  and  requisites. 

700.  Waiver — Dismissal. 

701.  Motion  to  require  election — Form. 

702.  Time  of  making. 


ARTICLE  XI 

DEMURRER 

703.  Grounds — Forms. 

704.  Misjoinder  of  parties. 

705.  Office  of  demurrer. 

706.  Requisites  and  construction. 

707.  Time  to  demur — After  motions. 

708.  Admissions  for  purpose  of  demurrer. 

709.  General  demurrer. 

710.  Limitations. 

711.  Objection  to  introduction  of  any  evidence  as  alternative. 

712.  Demurrer  and  answer. 

713.  .      Where  single  count. 

714.  Joint  demurrer. 

715.  Demurrer  to  answer. 

716.  To  amended  answer. 

717.  To  set-off  or  counterclaim. 

718.  Demurrer  to  reply. 

719.  Demurrer  relating  back. 

720.  Construction  of  pleading  demurred  to. 

721.  Ruling,  order,  and  judgment. 

ARTICLE  XII 

ISSUES,   PROOF,  AND  VARIANCE 

DIVISION  I.— ISSUES 
Kinds. 
Of  law. 
Of  fact. 

725.  Where  both  issues  arise. 

726.  Allegations  deemed  true. 


XXV111 


TABLE  OF   CONTENTS 


Sections 

727.  Admissions. 

728.  Material  allegation. 

DIVISION  II.— PROOF 

729.  Proof  required  under  certain  pleadings — Verified  denial. 

730.  Proof  admissible  under  pleadings. 

731.  Under  general  denial. 

732.  When  evidence  admissible  of  facts  not  pleaded. 


DIVISION 
733.    Rules  and  application. 


III.— VARIANCE 


734-774. 
775-780. 


Article  I. — Depositions. 
Article  II.— Affidavits. 


ARTICLE  I 

DEPOSITIONS 

734.  Defined. 

735.  When  taken.  <» 

736.  Subpoena  for  deposition. 

737.  Contempt — Discharge. 

738.  Abuse  of  process. 

739.  Stipulation. 

740.  Before  whom  taken. 

741.  Depositions  taken  out  of  state. 

742.  Officer  disinterested. 

743.  Commission. 

744.  Notice. 

745.  Publication  notice. 

746.  Contempt — Refusal  to  testify. 

747.  Writing  of  depositions. 

748.  Filing.  • 

749.  Authentication. 

750.  Certificate. 

751.  When  to  be  filed. 

752.  Fees  for  taking. 

753.  Exceptions. 

754.  Requisites  and  sufficiency. 

755.  To  be  decided  before  trial. 

756.  Incoinpetency  and  irrelevancy. 

757.  Motion  to  suppress — Form. 

758.  Objections  at  hearing.     . 

759.  Waiver  of  objections. 

760.  Perpetuating  testimony. 

761.  Petition— Form. 

762.  Order  for  examining  witnesses — Form. 

763.  Cross-interrogatories. 


TABLE   OF   CONTENTS 

Sections 

764.  Before  whom  taken. 

765.  Filing  and  use — Costs. 

766.  Error  waived  by  not  excepting. 

767.  When  deposition  may  be  used. 

768.  Unavailability  of  witness. 

769.  Deposition  as  evidence. 

770.  May  be  read  when. 

771.  Admission  of  part  of  deposition. 

772.  Copies. 

773.  Interpleader. 

774.  Forma. 

ARTICLE  II 

AFFIDAVITS 

775.  Definition. 

776.  Use. 

777.  Jurat. 

778.  Before  whom  taken. 

779.  By  whom  made.    - 

780.  Forms. 

CHAPTER  XIII 

TRIAL 

781-795.  Article  I. — In  general. 

796-801.  Article  II. — Argument  and  conduct  of  counsel. 

802-824.  Article  III.— Issues  and  trial  thereof. 

bo2.  Division  I. — Issues  in  general. 

803-824.  Division  II. — Taking  case  or  question  from  jury. 


xxix 


ARTICLE  I 

IN  GENERAL 

781.  Definition. 

782.  Time  of  trial. 

783.  Waiver  of  right 

784.  Docket. 

785.  Copy  for  bar. 

786.  Presence  of  judge. 

787.  Presence  of  parties  and  attorneys. 

788.  Conduct  and  remarks  of  judge. 

789.  Consolidation. 

790.  Separate  trials — Several  defendants. 

791.  Reporter — Duties. 

792.  Order  of  trial — Issues — Damages — Motions — Objections. 

793.  Waiver  of  right  to  object. 

794.  Issues — Trial  by  court  or  jury. 
794a.  Trial  by  court. 

794b.  Agreed  statement  of  facts. 

795.  Submission  without  suit 


XXX 


TABLE  OF   CONTENTS 


Sections 
796. 
797. 
798. 
799. 
800. 
801. 


ARTICLE  II 
ARGUMENT  AND  CONDUCT  OF  COUNSEL 

Opening  statement. 

Argument. 

Right  to  open  and  close. 

Retaliatory  statements. 

Conduct. 

Objections  and  exceptions'. 


ARTICLE  III 

ISSUES  AND  TRIAL  THEREOF 

DIVISION  I.— ISSUES  IN  GENERAL 

802.  Issues  not  pleaded. 

DIVISION  II.— TAKING  CASE  OB  QUESTION  FROM  JTJKT 

803.  In  general. 

804.  Retrial. 

805.  Questions  of  law  and  fact. 

806.  Negligence  in  general. 

807.  Contributory  negligence — Assumption  of  risk. 

808.  Agency. 

809.  Will  contest. 

810.  Malicious  prosecution. 

811.  Libel  and  slander. 

812.  Weight  of  evidence  and  credibility  of  witnesses. 

813.  Uncontroverted  evidence. 

814.  Motions  and  demurrer. 

815.  Demurrer  to  evidence. 

816.  Effect  as  admission. 

817.  What  rulings  proper. 

818.  Cure  of  error. 

819.  Trial  by  court. 

820.  Ruling  and  judgment  sustaining  demurrer. 

821.  Form. 

822.  Direction  of  verdict. 

823.  Effect  of  motion. 

824.  Form  of  motion. 


CHAPTER  XIV 

WITNESSES 

825-840.  Article  I. — Procuring  attendance  and  testimony. 

841-859.  Article  II. — Examination  of  witnesses. 
841-852.  Division  I. — Direct  examination. 

853-858.  Division  II. — Cross-examination. 

859.  Division  III. — Redirect  examination. 

860-874.  Article  III. — Competency  and  privilege. 

875-888.  Article  IV. — Credibility  and  impeachment. 


TABLE   OP   CONTENTS  XXXI 

ARTICLE  I 

PROCURING   ATTENDANCE   AND  TESTIMONY 

Sections 

825.  Taking  testimony — Modes. 

826.  Oath — Interpreter. 

827.  Subpoena — Issuance. 

828.  Contents — Duces  tecum. 

829.  Service. 

830.  Disobedience  of — Contempt. 

831.  Forms. 

832.  Attachment  for  nonatteiidance. 

833.  Punishment. 

834.  Requisites  of — Form. 
s35.  Prisoners  as  witnesses. 

836.  Custody. 

837.  Attendance. 

838.  Of  adverse  party. 

839.  Witness  may  demand  fees. 

840.  Refusal  to  testify — Contempt. 

ARTICLE  II 
EXAMINATION  OF  WITNESSES 

DIVISION   I.— DIRECT  EXAMINATION 

841.  Mode  of  testifying. 

842.  Questions. 

843.  Leading  questions. 

844.  Hostile  witnesses. 

845.  Repetition. 

846.  Interrogation  by  court. 

847.  Responsiveness  of  answer. 

848.  Aids  to  explain  testimony — Diagrams — Computation. 

849.  Refreshing  memory. 

850.  Memoranda  as  evidence. 

851.  Stenographer's  notes. 

852.  Recalling  witnesses.  . 

DIVISION  II.— CROSS-EXAMINATION 

853.  Extent  of  cross-examination. 

854.  Limitation  to  subjects  of  direct  examination. 

855.  Collateral  and  irrelevant  matters. 

856.  Character  witness. 

857.  Cross-examination  of  party. 

858.  Recalling  witness. 

DIVISION  III. — REDIRECT  EXAMINATION 
S59.     Scope  and  extent. 


XXX11  TABLE  OF  CONTENTS 

ARTICLE  III 

COMPETENCY  AND  PRIVILEGE 

Sections 

860.  In  general. 

S61.  Knowledge — Signature — Books  and  accounts. 

•    862.  Persons  interested. 

863.  Adverse  party. 

864.  Incompetents. 

865.  Husband  and  wife. 

866.  Attorney  and  client. 

867.  Clergyman  or  priest. 

868.  Physician  and  patient. 

869.  Construction  of  statutes. 

870.  Conviction  of  crime. 

871.  Self-incrimination. 

872.  Waiver. 

873.  Transactions    with  decedent. 

874.  Witness  privileged  from  being  sued. 

ARTICLE  IV 

CREDIBILITY  AND  IMPEACHMENT 

875.  Credibility. 

876.  Corroboration. 

877.  Impeachment. 

878.  Impeaching  own  witness. 

879.  Character  and  conduct  of  witness. 

880.  Reputation — Place  and  time  of  acquiring. 

881.  Particular  facts. 

882.  Conviction  of  crime. 

883.  Cross-examination  to  test  reliability  or  to  discredit 

884.  Conduct  in  reference  to  the  case. 

885.  Inconsistent  statements. 

886.  Contradicting  witness. 

887.  Prior  corroborating  statements. 

888.  Sustaining  evidence. 


TABLE  OF  CONTENTS 


xxxin 


VOLUME  II 


CHAPTER  XV 

EVIDENCE 

Sections 

889-911.  Article  I.— In  general.      • 

889-898.  Division  I.— Preparation  for  trial. 

899-911.  Division  II. — Reception  of  evidence. 

912-922.  Article  II.— Judicial  notice. 

923-949.  Article  III.— Presumptions. 

950-965.  Article  IV.— Burden  of  proof. 

966-1103.  Article  V.— Admissibility. 

966-987.  Division  I. — Relevancy  and  materiality. 

988-993.  Division  II. — Res  gestse. 

994-996.  Division  III. — Similar  matters. 

997-1019.  Division  IV. — Documentary  evidence. 

997-1010.  Subdivision  I. — Statutes,  ordinances,  and  public  records. 

1011-1019.  Subdivision  II. — Private  writings. ' 

1020-1039.  Division  V. — Parol  and  extrinsic  evidence. 

1040-1064.  Division  VI. — Opinion  evidence. 

1040-1060.  Subdivision  I. — Nonexpert  testimony. 

1061-1064.  Subdivision  II. — Expert  testimony. 

1065-1067.  •  Division  VII.— Hearsay. 

1068-1073.  Division  VIII.— Declarations. 

1074-1082.  Division  IX. — Best  and  secondary  evidence. 

1083-1086.  Division  X. — Demonstrative  evidence. 

1087-1103.  Division  XI. — Admissions. 

1104-1141.  Article  VI. — Quantum,  weight  and  sufficiency. 


ARTICLE  I 

IN  GENERAL 

DIVISION  1. — PREPABATION  FOB  TRIAL 

889.  Genuineness  of  writings — Admission. 

890.  Documents — Preliminary  inspection. 

891.  Copy  of  writing. 

892.  Duty  to  furnish  evidence. 

893.  Misconduct — Falsifying  evidence. 

894.  Fraud  or  deceit  to  witness. 

895.  Preparation  of  false  evidence. 

896.  Destruction  of  evidence. 

897.  Keeping  witness  from  attending. 

898.  Bribery  of  witness. 

DIVISION  II.— RECEPTION  OF  EVIDENCE 

899.  Oral  examination — Objections. 

900.  Exclusion  of  witnesses. 
HOX.PL.&  PRAC—  c 


XXXIV  TABLE  OF  CONTENTS 

Sections 

901.  Offer  of  proof. 

902.  Restricting  to  special  purpose. 

903.  Withdrawal  of  evidence. 

904.  Limiting  number  of  witnesses. 

905.  Order  of  proof. 

906.  Preliminary  proof. 

907.  Rebuttal  and  surrebuttal. 
90S.  Reopening  case. 

909.  Objections — Forms. 

910.  Motion  to  strike  out — Form. 

911.  Exceptions. 

ARTICLE  II 

JUDICIAL  NOTICE 

912.  Matters  of  common  knowledge. 

913.  Political  subdivisions. 

914.  Legislature. 

915.  Laws  and  ordinances. 

916.  Acts  of  Congress. 

917.  Laws  of  other  states. 

918.  Indians.    , 

919.  Jurisdiction  of  courts. 

920.  Judicial  proceedings. 

921.  Officials— Authority. 

922.  Rules  and  acts. 

ARTICLE  III 

PRESUMPTIONS 

923.  In  general. 

924.  Knowledge  of  law. 

925.  Continuance  of  fact. 

926.  Personal  status. 

927.  Indians. 

928.  Regularity  in  business. 

929.  Mail  matter. 

930.  Available  evidence  not  produced. 

931.  Laws  of  another  state. 

932.  judicial  proceedings. 

933.  Official  acts. 

934.  Carriers. 

935.  Railroads — Injury  to  passenger. 

936.  Injury  to  employee. 

937.  Damage  to  property. 

938.  Wrongful  death. 

939.  Death. 

940.  Fraud. 

941.  Contracts. 

942.  Agency. 

943.  Reports— Records— Partnership. 
944.     Wills. 


TABLE  OF   CONTENTS  XXXV 

Sections 

945.  Trusts. 

946.  Bills  and  notes. 

947.  Marriage. 

948.  Payment. 

949.  Libel  and  -slander. 

ARTICLE  IV 

BURDEN  OF  PROOF 

950.  In  general. 

951.  Personal  status. 

952.  Particular  issues. 

953.  Contracts. 

954.  Bailment. 

955.  Bills  and  notes — Execution. 

956.  Holder. 

957.  Consideration. 

958.  Insurance — In  general. 

959.  Proof  of  loss. 

960.  Misrepresentation  or  breach. 

961.  Indians. 

962.  Statute  of  limitations. 

963.  Damages. 

964.  Malicious  prosecution. 

965.  Negligence., 

ARTICLE  V 

ADMISSIBILITT 
DIVISION  I.— RELEVANCY  AND  MATEBIAIJTY 

966.  Pertinent  to  issues. 

967.  Materiality. 

968.  Value. 

969.  Reasonable  compensation. 

970.  Damages. 

971.  Personal  injuries. 

972.  Wrongful  death. 

973.  Negative  evidence. 

974.  Will  contest. 

975.  Divorce. 

976.  Fraud. 

977.  Insurance. 

978.  Marriage. 

979.  Price. 

980.  Title. 

981.  Services. 

982.  Condemnation  proceedings. 

983.  Agency  and  partnership. 

984.  Unlawful  arrest. 

985.  Entire  conversation  or  transaction. 

986.  Telephone  conversations. 

987.  Motive  or  intent. 


XXXVi  TABLE  OF  CONTENTS 

DIVISION  II.— RBS  GEST^J 

Sections 

988.  What  constitutes. 

989.  Discretion. 

990.  Declarations. 

991.  Injury  and  pain. 

992.  Acts  and  statements. 

993.  Directions. 

DIVISION  III.— SIMILAR  MATTERS 

994.  In  general. 

995.  Fraud. 

996.  Custom — Accidents — Value. 

DIVISION  IV. — DOCUMENTARY  EVIDENCE 
Subdivision  I. — Statutes,  Ordinances,  and,  Public  Records 

997.  Acts  of  Congress — Statute  books — Legislative  journals. 

998.  Foreign  laws. 

999.  Ordinances. 

1000.  Congressional  documents. 

1001.  Copies — Public  records. 
1002.  Official  books  and  records. 

1003.  Court  records  and  files. 

1004.  Records  of  justice  of  the  peace. 

1005.  Departmental  records. 

1006.  Land  office  receipts  and  records. 

1007.  Official  signatures  presumed  genuine. 

1008.  Authentication. 

1009.  Copies  of  foreign  records. 

1010.  Translations. 

Subdivision  II. — Private  Writings 

1011.  Church  records. 

1012.  Corporate  records. 

1013.  Written  instruments. 

1014.  Recitals  in  deeds  and  mortgages. 

1015.  Account  books. 

1016.  Memoranda. 

1017.  Letters. 

1018.  Maps  and  photographs. 

1019.  Identification  and  authenticity. 

DIVISION  V.— PAROL  AND  EXTRINSIC  EVIDENCE 

1020.  Contracts. 

1021.  Insurance  policies. 

1022.  Notes  and  indorsements. 

1023.  Deeds  and  mortgages. 

1024.  Tickets,  bills  of  lading,  and  receipts. 

1025.  Release. 

1026.  Court  records. 

1027.  Ordinances. 

1028.  Memoranda  and  incomplete  contracts. 


TABLE  OF  CONTENTS  XXXvii 


Sections 

1029.  Minutes. 

1030.  Wills. 

1031.  Surety  and  guaranty. 

1032.  Agency. 

1033.  Consideration. 

1034.  Delivery. 

1035.  Mistake. 

1036.  Fraud — Duress. 

1037.  Separate  or  subsequent  oral  contract. 

1038.  Evidence  explanatory   of  writing. 

1039.  Evidence  showing  performance  or  discharge. 

DIVISION  VI. — OPINION  EVIDENCE 
Subdivision  1. — Nonexpert  Testimony 

"1040.  Conclusions  and  opinions  in  general. 

10±1.  Nonexpert  witnesses  in  general. 

1042.  Foundation. 

1043.  Discretion. 

1044.  Value. 

1045.  Paternity,  race,  and  age. 

1046.  Mental  condition. 

1047.  Physical  appearances,  conduct,  and  condition. 

1048.  Financial  condition. 

1049.  Medical  and  surgical  practice. 

1050.  Speed. 

1051.  Damages. 

1052.  Amount. 

1053.  Custom  and  usage. 

1054.  Habits  and  nature. 

1055.  Ownership. 

1056.  Agency. 

1057.  Handwriting. 

1058.  Identification. 

1059.  Dangerous  and  safe  conditions — Negligence. 

1060.  Competency  and  skill. 

Subdivision  II. — Expert  Testimony 

1061.  Subject-matter. 

1062.  Competency  of  experts. 

1063.  Examination  of  experts — Hypothetical  questions. 

1064.  Handwriting. 

DIVISION  VII.— HEARSAY 

1065.  In  general. 

1066.  Statements  of  others  than  parties  or  witnesses. 

1067.  Evidence  based  .on  hearsay. 

DIVISION  VIII.— DECLARATIONS 

1068.  Intent. 

1069.  Self-serving  declarations. 

1070.  Against  interest. 

1071.  Persons  in  possession. 


XXXviil  TABLE   OF   CONTENTS 

Sections 

1072.  Age  and  pedigree. 

1073.  Dying  declarations 

DIVISION  IX.-*-BEST  AND  SECONDARY  EVIDENCE 

1074.  Necessity  of  best  evidence. 

1075.  Matters  evidenced  -by  writing. 

1076.  Public  records. 

1077.  Court  records. 

1077a.  Evidence  at  former  trial  or  other  proceeding. 

1078.  Contents  of  writing. 

1079.  Collateral  writings. 

1080.  Copies. 

1081.  Secondary  evidence  admissible  when. 

1082.  Notice. 

DIVISION  X.— DEMONSTRATIVE  EVIDENCE 

1083.  Exhibition  of  person. 

1084.  Exhibition  of  articles. 

1085.  Experiments  and  tests. 

1086.  Handwriting. 

DIVISION  XI. — ADMISSIONS 

1087.  Judicial  admissions. 

1088.  Offers  of  compromise. 

1089.  Written  statements. 

1090.  Conduct. 

1091.  Acquiescence  or  silence. 

1092.  Admissions  by  parties  or  others  interested. 

1093.  Admissions  of  former  owners  or  privies. 

1094.  Admissions  by  agents. 

1095.  Admissions  by  corporate  and  municipal  officers. 

1096.  Husband  and  wife. 

1097.  Principal  and  surety. 

1098.  Guardian. 

1099.  Conspirators. 

1100.  Preliminary  evidence. 

1101.  Mode  of  proof. 

1102.  Explanation. 

1103.  Construction. 

ARTICLE  VI 

QUANTUM,  WEIGHT,  AND  SUFFICIENCY 

1104.  Consideration  of  testimony  in  general. 

1105.  Uncontradicted  evidence. 

1106.  Quantum  of  proof  in  general. 

1107.  Prima  facie  evidence. 

1108.  Circumstantial  evidence. 

1109.  Affirmative   and   negative    evidence — Conclusions. 

1110.  Effect  of  opinion  evidence. 

1111.  Effect  of  admissions. 

1112.  Testimony  of  party. 

111."..  Party  bound  by  bis  own  evidence. 


TABLE  OF   CONTENTS 


XXXIX 


Sections 

1114.  Contracts. 

1115.  Notes. 

1116.  Conveyances. 

1117.  Gifts. 

1118.  Insurance. 

1119.  Trusts. 

1120.  Wills. 

1121.  Court  records  and  files. 

1122.  Partnership. 

1123.  Agency  and  official  capacity. 

1124.  Sales. 

1125.  Fraud. 

1126.  Negligence  and  cause. 

1127.  Novation. 

1128.  Title. 

1129.  Payment — Receipts. 

1130.  Amount  of  damages. 

1131.  Usury. 

1132.  Copy   of  articles  of  incorporation. 

1133.  Recovery  of  penalties. 

1134.  Abandonment  of  homestead. 

1135.  Financial  status. 

1136.  Ejectment. 

1137.  Attachment. 

1138.  Cancellation  of  instruments. 

1139.  Reformation  of  instruments. 

1140.  Divorce. 

1141.  Bastardy. 

CHAPTER  XVI 

JURY 

Article  I. — Right   to  jury  trial. 
Article  II. — Jury  panel. 

Article  III — Qualifications,   challenges,   and   exemptions. 
Article  IV. — Oath,  number,  term,  and  summoning. 
Article  V. — Custody,  conduct,  and  deliberations- 
Article  VI.— Verdict. 


] 142-1150. 
1151-1162. 
1163-1171. 
1172-1175. 
1176-1189. 
1190-1203. 
1204-1216.  Article  VII. — Special  interrogatories  and  findings. 


ARTICLE  I 

RIGHT  TO  JURY  TRIAL 

1142.  Right  to  jury  trial — Verdict. 

1143.  Waiver. 

1144.  In  equity  cases. 

1145.  Trial  of  issues. 

1146.  In  actions  at  law  or  in  equity  or  mixed  actions. 

1147.  In  particular  actions  or  proceedings. 

1148.  In   special   proceedings. 


xl  TABLE  OF   CONTENTS 

Sections 

1149.  On  intermediate  appeal. 

1150.  Infringement  of  right. 

ARTICLE  II 

JURY  PANEL 

1151.  Jury  commission. 

1152.  Meeting    of   jury    commissioners — Quorum. 

1153.  Jury  lists. 

1154.  Lists  to  be  certified. 

1155.  District  court — How   drawn. 
1156-     Venires — How  served — Form. 

1157.  Open   venires — Talesmen — Form. 

1158.  County  court — How  selected. 

1159.  Procedure  when  regular  panel  exhausted. 

1160.  Qualifications  of  jurors — Exemptions. 

1161.  Former  list  removed  when  new  list  selected. 
11G2.  Irregularities  in  drawing. 

ARTICLE  III 

QUALIFICATIONS,  CHALLENGES,  AND  EXEMPTIONS 

1163.  Challenges  to  panel. 

1164.  Statutory  grounds  for  challenge. 

1165.  Qualifications  in  general. 

1166.  Waiver  of  objection. 

1167.  Order  of  challenges. 

1168.  Challenges  for  cause. 

1169.  Vacancies  filled  at  once. 

1170.  Talesmen. 

1171.  Exemptions. 

ARTICLE  IV 

OATH,  NUMBER,  TERM,  AND  SUMMONING 

1172.  Oath. 

1173-     Number  of  jurors. 

1174.  Term  of  service. 

1175.  Selection  and  summoning. 


ARTICLE  V 
CUSTODY,  CONDUCT,  AND  DELIBERATIONS 

1176.  Admonition. 

1177.  Misconduct  of  others. 

1178.  View  of  premises. 

1179.  Taking  papers  and  articles  to  jury  room. 

1180.  Additional  instructions. 

1181.  Information  after  retirement. 


TABLE  OF  CONTENTS  xli 

\ 
.Sections 

1182.  Custody  of  jury  during  deliberations. 

1183.  Deliberations. 

1184.  Coercing  verdict. 

1185.  Quotient  verdict. 

1186.  Improper  considerations. 

11^7.     Matters  considered — Evidence  read — Personal  knowledge  of  juror. 

1188.  Discharge  of  jury. 

1189.  Objections  and  exceptions. 


ARTICLE  VI 
VERDICT 

1190.  Definition,  form,  and  reception. 

1191.  Number  of  jurors  assenting. 

1192.  Signature. 

1193.  Polling  of  jurors. 

1194.  Parties — Designation. 

1195.  Severance — Variance. 

1196.  Several  counts. 

1197.  Surplusage.  \ 

1198.  Disregarding  instructions. 

1199.  Amending   and   correcting   verdict. 

1200.  Construction  and  operation. 

1201.  Impeachment  of  verdict. 

1202.  Objections  and  exceptions. 

1203.  Form. 

ARTICLE  VII 
SPECIAL  INTERROGATORIES  AND  FINDINGS 

1204.  Special    verdict    and    findings. 

1205.  Power  to  require. 
1206-     Interrogatories. 

1207.  Preparation  and  form. 

1208.  Withdrawal. 

1209.  Special  findings. 

1210.  Requisites  and  sufficiency. 

1211.  Responsiveness. 

1212.  Inconsistency. 

1213.  Defects  and  amendments. 

1214.  Construction. 

1215.  Objections  and  exceptions. 

1216.  Form. 

CHAPTER  XVII 

INSTRUCTIONS 

1217.  Definition. 

1218.  Province  of  court. 

1219.  Defining  words  and  terms. 


xlii 


TABLE   OF   CONTENTS 


Sections 

1220.  Verdict — Findings— Deliberations  and  determination  of  jury— Ar- 

gument of  counsel. 

1221.  Province  of  jury. 

1222.  Written  instructions — Request. 

1223.  Time  of  making  request. 

1224.  Time  of  giving  instructions 

1225.  Accuracy. 

1226.  Misleading  instructions. 

1227.  Formal  requisites  and  sufficiency. 

1228.  Instructions  and  pleadings. 

1229.  Instructions  and  evidence. 

1230.  Illustrations. 

1231.  Withdrawal  of  instructions. 

1232.  Instructions  on  issues- 

1233.  Applicability  to  pleadings  and  evidence. 

1234.  Positive  and  negative  evidence. 

1235.  Limiting  effect  of  evidence. 

1236.  Matters  of  general  knowledge. 

1237.  Requested  instructions. 
1237a.     Objections  and  exceptions. 

1238.  Forms. 


CHAPTER  XVIII 

JUDGMENT 

1239-1244.  Article  I. — Definition,  validity,  and  parties. 

1245-1252.  Article  II. — Confession  of  judgment. 

1253-3261.  Article  III.— Conformity. 

1253-1255.  Division  I. — Conformity  to  issues. 

1256-1259.  Division  II. — Conformity   to  verdict. 

1260-1261.  Division  III.— Conformity  to  findings. 

1262-1291.  Article  IV.— Rendition,  form,  and  requisites. 

1262-1267.  Division  I— In  general. 

1268-1271.  Division  II.— Rendition. 

1272-1275.  Division  III.— Equity. 

1276-1291.  Division  IV. — Record  of  judgment. 

1292-1304.  Article  V. — Default  judgment. 

1292-1299.  Division  I. — Requisites  and  validity. 

1300-1304.  Division  II. — Opening   and   vacating  judgment. 

1305-1324.  Article  VI. — Reversing,    vacating,    or    modifying. 

1305-1314.  Division  I. — Authority  to  review. 

1315-1324.  Division  II.— Proceedings. 

1325-1364.  Article    VII. — Operation,    construction,    enforcement,    and    satis- 
faction. 

1325-1331.  Division  I.— In  general. 

1332-1335.  Division  II.— Enforcement. 

1336-1347.  Division  III. — Payment,    satisfaction,    and    discharge. 

1348-1364.  Division  IV.— Judgment  liens. 

1365-1370.  Article  VIII. — Assignment  of  judgment. 

1371-1394.  Article  IX.— Collateral  attack. 

1371-1374.  Division  I. — Judgment   impeachable   collaterally. 


TABLE  OF   CONTENTS 


xliii 


Sections 

13757-1390.  Division  II — Grounds  of  attack. 

1391-1392.  Division  III — Proceedings. 

1393-1394.  Division  IV— Probate  of  wills. 

1395-1461.  Article  X.— Res  adjudicata. 
1395-1411.  Division  I. — In  general- 

1412-1425.  Division  II. — Causes  of  action   or   defenses  merged,   barred, 

or  concluded. 

1426-1429.  Division  III. — Persons  to  whom  bar  available. 

1430-1440.  Division  IV. — Judgments  conclusive  in  general. 

1441-1453.  Division  V.> — Persons  concluded. 

1454-1401.  Division  VI — Matters    concluded. 

1462-1467.  Article  XI. — Amount  of  recovery. 

1468-1471.  Article  XII. — Actions   on   judgments. 

1472-1478.  Article  XIII.— Equitable  relief. 

1479-1485.  Article  XIV. — Foreign  judgments. 

1486-1488.  Article  XV.— Transcript. 


ARTICLE  I 

DEFINITION,  VALIDITY,  AND  PARTIES 

1239-     Definition. 

1240.  Validity. 

1241.  Jurisdiction. 

1242.  Judgment  in  rein. 

1243.  Parties. 

1244.  New  parties. 

ARTICLE  II 

CONFESSION  OF  JUDGMENT 

1245.  Confession  by  defendant — Form. 

1246.  By   prisoner — Witness. 

1247.  By  attorney — Authority. 

1248.  By  agreement. 

1249.  Cause  to  be  stated. 

1250.  Affidavit. 

1251.  Enforcement. 

1252-     Offer  to  confess  judgment — Form. 


ARTICLE  III 

CONFORMITY 

DIVISION  I. — CONFORMITY  TO  ISSUES 

1253.  Conformity  to  issues  in  general. 

1254.  Conformity  to  pleadings. 

1255.  Prayer. 


xliv  TABLE  OF  CONTENTS 

DIVISION  II.— CONFORMITY  TO  VERDICT 

Sections 

1256.  Judgment  on  verdict. 

1257.  Interest. 

1258.  On  special  verdict. 

1259.  Judgment  against  verdict. 

DIVISION  III.— CONFORMITY  TO  FINDINGS 

1260.  Supported  by  findings. 

1261.  Approval  of  findings. 

ARTICLE  JV 

RENDITION,  FORM,  AND  REQUISITES 
DIVISION  I.— IN  GENERAL 

1262.  For  defendant. 

1263.  Against  infant. 

1264.  On  motion. 

1265.  Judgment  in  foreclosure  suit. 

1266.  Appeal   from  county  commissioners. 

1267.  Corporations — Involuntary    dissolution. 

DIVISION  II.— RENDITION 

1268.  Time. 

1269.  Ejectment. 

1270.  Interplea. 

1271.  Bastardy. 

DIVISION  III.— EQUITY 

1272.  In  general. 

1273.  Specific  performance. 

1274.  Foreclosure. 

1275.  Mechanic's  lien. 

DIVISION  IV.— RECORD  OF  JUDGMENT 

1276.  Journal  entry — Form. 

1277.  Clerk  to  make  record. 

1278.  When  made. 

1279.  Contents. 

1280.  To  be  signed. 

1281.  Completing  record. 

1282.  Conclusiveness. 

1283.  Nunc  pro  tune  orders. 

1284.  Lost  or  destroyed  judgment. 

1285.  Filing  transcript — Justice's   judgment, 

1286.  In  other  county. 

1287.  Record  in  realty  case- 

1288.  Recording. 

1289.  Involuntary  dissolution. 

1290.  Record  as  notice. 

1291.  Orders  and  decrees. 


TABLE  OF  CONTENTS  xl 

ARTICLE  V 

DEFAULT  JUDGMENT 

DIVISION  I.— REQUISITES  AND  VALIDITY 

Sections 

1292.  Petition. 

1293.  When  party  is  in  default. 

1294.  Proof  taken — Damages. 

1295.  Time  for  rendering  judgment. 

1296.  Validity  of  judgment — Service — Form  of  judgment. 

1297-    Actions  to  which  state  is  party — Dismissal — Default — Notice  to 
Attorney  General. 

1298.  Notice — How  given — Proof- 

1299.  Judgment  without  notice  void. 

DIVISION  II.— OPENING  AND  VACATING  DEFAULT  JUDGMENT 

1800-  Opening  judgment  after  default  on  service  by  publication. 

1301.  Excusable  default. 

1302.  Pleading — Form. 

1303.  Valid  defense — Excuse — Petition — Effect  of  motion. 

1304.  Discretion  of  court. 

ARTICLE  VI 

REVERSING,  VACATING  OR  MODIFYING 
DIVISION  I.— AUTHORITY  TO  REVIEW 

1305.  Jurisdiction  and  power." 

1306.  During  term. 

1307.  After  term. 

1308.  Common-law  powers. 

1309.  Want  of  jurisdiction. 

1310.  Other  remedies. 

1311.  Errors — Irregularities. 

1312.  Law. 

1313.  Pleading. 

1314.  Operation  and  effect. 

DIVISION  II.— PEOCEEDINGS 

1315.  Motion— Form. 

1316.  Petition— Form. 

1317.  Hearing. 

1318.  ^Evidence. 

1319.  Trial  of  ground  of  review. 

1320.  Defense  must  be  shown. 

1321.  Suspending     proceedings — Bond — Forms. 

1322.  Premature  judgment. 

1323.  Time  for  application. 

1324.  Applicable  to  what  courts. 


xlvi  TABLE  OF  CONTENTS 

ARTICLE  VII 

OPERATION.    CONSTRUCTION,    ENFORCEMENT,   AND    SATISFACTION 
DIVISION  I. — IN  GENERAL 

Sections 

1325.  '  Establishes  claim. 

1326.  Death  after  verdict. 

1327.  For  recovery  of  land. 

1328.  Surety. 

1329.  Joint  defendants. 

,  1330.  Interpretation — Interest. 

1331.  Collusiveness. 

DIVISION  II.— ENFORCEMENT 

1332.  Judgments  before  death. 

1333.  Guaranty  companies. 

1334.  Conveyance  ordered — Form  of  order. 

1335.  Alimony. 

DIVISION  III.— PAYMENT,  SATISFACTION,  AND  DiscHABaa 

1336.  Dormant  Judgments. 

1337.  Revival. 

1338.  Necessity. 

1339.  Death  of  party. 

1340.  Proceedings — Forma. 

1341.  Effect  of  revival. 

1342.  Mode  of  payment. 

1343.  Set-off  of  judgments. 

1344.  Merger. 

1345.  Release. 

1346.  Compelling  satisfaction. 

1347.  Vacating  satisfaction — Forms. 

DIVISION  IV.— JUDGMENT  LIENS 

1348.  Statutory  regulations — .Lien  on  real  estate. 

1349.  Nature  of  lien. 

1350.  Debtor's  realty. 

1351.  Extent  of  lien. 

1352.  Lien  of  corporation  commission. 

1353.  Homestead. 

1354.  Osage  Indian  lands. 

1355.  Alimony. 

1356.  Animals. 

1357.  Judgments  against  counties. 

1358.  Receipt  by  clerk. 

1359.  Priorities. 

1360.  Judgment  and  conveyances. 

1361.  Prior  unrecorded  deed. 

1362.  Receivership. 

1363.  Duration  of  lien. 

1364.  Postponement  of  lien. 


TABLE  OF  COTs7TEXTS 

ARTICLE  VIII 
ASSIGNMENT  OF  JUDGMENT 


xlvii 


Sections 

1365.  In  general. 

1366.  Consideration    and    validity. 

1367.  Setting  aside  assignment. 

1368.  Effect  of  transfer. 

1369.  Rights  of  parties. 

-   1370.  As  to  each  other. 


ARTICLE  IX 

/ 

COLLATERAL  ATTACK 
DIVISION  I.— JUDGMENTS  IMPEACHABLE  COLLATERALLY 

1371.  In  general. 

1372.  Particular  courts— County  court — District  court. 

1373.  Federal  court. 

1374.  Nature  of  subject-matter. 

DIVISION  II.— GROUNDS  OF  ATTACK 

1375-     Invalidity — In  general. 

1376.  Default  judgment- 

1377.  Want  of  jurisdiction. 

1378.  Want  of  service. 

1379.  Service  by  publication. 

1380.  Presumption  of  jurisdiction. 

1381.  Effect  of  recitals. 

1382.  Extrinsic  evidence. 

1383.  Errors  and  irregularities— In  general- 

1384.  As  to  parties. 

1385.  As  to  pleadings. 

1386.  In  proceedings. 

1387.  Perjury. 

1388.  Fraud. 

1389.  Collusion. 

1390-     Available  defenses. 

DIVISION  III.— PROCEEDINGS 

1391.  Nature  of  attacks. 

1392.  Preventing  enforcement. 

DIVISION  IV.— PROBATE  OF  WILLS 

1393.  In  general. 

1394.  Ancillary  probate. 


xlviii  TABLE  OF  CONTENTS 


ARTICLE  X 

RES  ADJUDICATA 
DIVISION  1.— IN  GENERAL 

Sections 

1395.  Nature  of  former  recovery. 

1396.  Nature  of  action — Warrant  indebtedness. 

1397.  Equitable  actions. 

1398.  Interplea. 

1399.  Real  property. 

1400.  Criminal  prosecutions. 

1401.  Scope  of  adjudication. 

1402.  Judgments  without  prejudice. 

1403.  Reserving  rights. 

1404.  Default. 

1405.  Motion  or  summary  proceedings. 

1406.  Void  in  part. 

1407.  Dismissal. 

1408.  Demurrer. 

1409.  Verdict  without  judgment. 

1410.  Pendency  of  appeal. 

1411.  Judgment  vacated  or  reversed. 

DIVISION  II. — CAUSES  OF  ACTION  OB  DEFENSES  MERGED,  BABRED,  OB  CONCLUDED 

1412.  Nature  of  merger. 
1413-  Elements  of  judgment. 

1414.  Identity  of  actions. 

1415.  Identity  of  subject-matter. 

1416.  Theory  of  action. 

1417.  Form  of  remedy. 

1418.  Grounds  of  action. 

1419.  Relief. 

1420.  Splitting  actions — Single  and  entire. 

1421.  Accounts. 

1422.  Installments. 

1423.  Torts. 

1424.  Successive  causes  of  action. 

1425.  Defenses  concluded. 

DIVISION  III.— PERSONS  TO  WHOM  BAB  AVAILABLE 

1426.  Mutuality  of  estoppel. 

1427.  Parties  or  privies. 

1428.  Joint  and  several  contractors. 

1429.  Joint  tort-feasors. 

DIVISION  IV.— JUDGMENTS  CONCLUSIVE  IN  GENERAL 

1430.  Nature — In  general. 

1431.  Failure  to  appeal. 

1432.  Judgments  of  federal  courts. 

1433.  Probate  jurisdiction. 

1434.  Finality  of  determination. 


TABLE' OF  CONTENTS  xlix 


Sections 

1435.  Special  proceedings. 

1436.  Form  of  judgment. 

1437.  Confession  or  consent. 

1438.  Default. 

1439.  Judgment  on  motion. 

1440.  Erroneous  judgment. 

DIVISION  V. — PERSONS  CONCLUDED 

1441.  Identity  of  persons — In  general. 

1442.  Unknown  parties. 

1443.  Additional  parties. 

1444.  Official  capacity. 

1445.  Participating  in  action. 

1446.  Representatives. 

1447.  Privity  in  general. 

1448.  Vendor  and  purchaser. 

1449.  Other  special  relations. 

1450.  Coplaintiffs  and  codefendants. 

1451.  Persons  not  parties  or  privies. 

1452.  Evidence. 

1453.  Evidence  of  property   rights. 

DIVISION  VI.— MATTERS  CONCLUDED 

1454.  Scope  of  estoppel. 

1455.  Identity  of  subject-matter. 

1456.  Identity  of  issues. 
1457-  Matters  not  in  issue. 

1458.  Issues  undecided. 

1459.  Title  or  right  to  property. 

1460.  Rights  under  contracts. 

1461.  Real  property. 

ARTICLE  XI 

AMOUNT  OF  RECOVERY 

1462.  Damages — Assessment — Measure. 

1463.  Breach  of  warranty. 

1464.  Unlawful    detention — Conversion. 

1465.  Use  and  occupation. 

1466.  Exemplary  damages. 

1467.  Interest  and  attorney's  fees. 


ARTICLE  XII 
ACTIONS  ON  JUDGMENTS 

1468.  Cause  of  action. 

1469.  Who  may  sue. 

1470.  Review. 

1471.  Foreign    judgments. 
HON.PL.&  PRAC.— d 


TABLE   OF   CONTENTS 


ARTICLE  XIII 

EQUITABLE  RELIEF 
Sections 

1472.  In  general. 

1473.  Fraud. 

1474.  Injunction — Forms. 

1475.  Suit  to  vacate. 

1476.  Parties. 

1477.  Pleading. 

1478.  Evidence. 

ARTICLE  XIV 


1479. 
1480. 
1481. 
1482. 
1483. 
1484. 
1485. 


FOREIGN  JUDGMENTS 
In  general. 


Recognition- 
Jurisdiction. 
Judgment  in  rem. 
Fraud. 

Conclusiveness. 
Divorce  and  alimony. 
Enforcement  in  other  states. 


ARTICLE  XV 

TRANSCRIPT 

1486.  Filing  judgment  in   district  court— Forms. 

1487.  Certificate  of  amount  paid. 

1488.  Revivor. 

CHAPTER  XIX 

NEW  TRIAL 

1489-1493.     Article  I. — Scope   of    remedy. 
1494-1505.     Article  II— Grounds. 
1506-1526.    Article  III.— Procedure. 


ARTICLE  I 
SCOPE  OF  REMEDY 

1489.  Inherent  power. 

1490.  Discretion. 

1491.  Waiver. 

1492.  Second  application. 

1493.  Pendency   of   application — Its   effect. 


TABLE  OF   CONTENTS 


li 


ARTICLE  II 

Sections  GROUNDS 

1494.  Statutory  power. 

1494a.  Errors  and  irregularities  in  general. 

1495.  Misconduct. 

1496.  Rulings  and  instructions. 

1497.  Jurors — Disqualification — Misconduct- 

1498.  Defective  verdict  or  findings. 
1499..    Verdict  contrary  to  instructions. 

1500.  Verdict  contrary  to  evidence. 

1501.  Special  findings. 

1502.  Amount  of  recovery. 

1503.  Mistake,  passion  or  prejudice. 

1504.  Surprise,  accident  or  mistake. 

1505.  Newly  discovered  evidence. 


-Communications. 


ARTICLE  III 

PROCEDURE 

1506.  Application. 

1507.  When  motion  is  proper — Form. 

1508.  Ruling  of  court  on  motion — Right  to  new  trial. 

1509.  Time  for  making. 

1510.  Requisites — Application. 

1511.  Statement  of  grounds  and  specification  of  errors. 

1512.  Parties. 

1513.  Extrinsic  evidence. 

1514.  Jurors. 

1515.  Affidavits — Forms. 

1516.  As  to  newly  discovered  evidence — Form. 

1517.  Transcript  of  evidence. 

1518.  Amendment. 

1519.  Abandonment  of  motion. 

1520.  Order — Forms. 

1521.  Setting  aside. 

1522.  Hearing. 

1523.  Time. 

1524.  Conditions  to  granting. 

1525.  Reduction  of  verdict  or  remission  of  excess — Form  of  order. 

1526.  Petition  for  new  trial — Form. 


1527-1534. 

1535-1551. 

1552-1562. 

1563-1571a. 

1572-1578. 


CHAPTER  XX 

COSTS 

Article  I. — Security  for  costs. 
Article  II. — Taxation  of  costs. 
Article  III. — Items  taxable  as  costs. 

Article  IV. — Collection    and   payment. 
Article  V — Costs  on  appeal. 


Hi  TABLE  OF   CONTENTS 

ARTICLE  I 

SURETY  FOR  COSTS 
Sections 
l.~>27.    In  general — Statute- 

1528.  Bond — Form. 

1529.  Deposit. 

1530.  Pauper  affidavit — Form. 

1531.  False  swearing. 

1532.  Additional  security. 
1533-     Failure  to  give  security. 

1534.  Remedies  against  sureties — Form  of  motion. 

ARTICLE  II 

TAXATION  OF  COSTS 

1535.  Right  to  award. 

1536.  Costs  taxed  by  clerk. 

1537.  Costs  where  defendant  disclaims. 

1538.  Costs  go  with  judgment. 
1539-     Prevailing  party. 

1540.  Costs  that  may  be  taxed  at  discretion  of  court. 

1541.  On  motions. 

1542.  Quo  warranto. 

1543.  Defendant. 

1544.  Apportionment. 

1545.  Waiver. 

1546.  On  joint  liability. 

1547.  Effect  of  tender  or  offer  to  confess  ju  figment. 

1548.  Settlement,  stipulation  and  abatement. 

1549.  Costs — Corporations — Involuntary  dissolution. 

1550.  Liability  of  representative. 

1551.  Costs  on  interplea. 

ARTICLE  III 

ITEMS  TAXABLE  AS  COSTS 

1552.  Attorney's  fees. 

1553.  Stenographer's  fees. 

1554.  Receivership. 

1555.  Fees  for  legal  publication — Taxed  as  costs. 
I.~.j6.     Contempt  proceedings. 

1557.  Jurors. 

1558.  Witnesses- 

1559.  Guardian. 

15GO.     Court  clerks — Fees. 

1561.  Sheriffs  and  constables — Fees. 

1562.  County  judge — Fees. 


TABLE   OF   CONTENTS 


liii 


ARTICLE  IV 

COLLECTION  AND  PAYMENT 

Sections 

1563.  Fees — When  due. 

1564.  Process — Fees  for  service. 

1565.  Cost — Proof  of  payment. 

1566.  Costs— Statement  of. 
'1567.     Fees— Receipt  for. 

1568.  Execution. 

1569.  Costs — By  whom  held. 
1570-    Mileage — Constructive. 
1571.     Municipal  corporations. 

1571a.     Apportionment  of  deposits  and  collections. 


ARTICLE  V 

COSTS  ON  APPEAL 

1572.  In  general. 

1573-  Apportionment. 

1574.  Attorney  fees. 

1575-  Case-made. 

1576.  Briefs. 

1577.  Motion  to  retax — Form. 

1578.  Dismissal  of  appeal. 


CHAPTER  XXI 

EXECUTIONS 

1579-1585.  Article  I. — Nature   and    requisites. 

1586-1594.  Article  II. — Property  subject. 

1595-1605-  Article  III. — Issuance,  form,  and  requisites. 

1606-1634.  Article  IV. — Levy   and   enforcement. 

1635-1653.  Article  V— Sale  and  redemption. 

1654-1661.  Article  VI. — Proceeds,  amercement,  and  return. 

1662-1670.  Article  VII. — Supplemental  proceedings. 

1671.  Article  VIII. — Wrongful  execution. 


ARTICLE  I 
NATURE  AND  REQUISITES 


1579.  Kinds. 

1580.  Judgment. 

1581.  Conformity  to. 

1582.  Enforcement   of. 

1583.  Contribution. 

1584.  Principal  and  surety. 

1585.  Several  executions. 


TABLE   OF   CONTEXTS 


•      ARTICLE  II 

Sections  PROPERTY  SUBJECT 

1586-  In  general. 

1587-  Interests  subject. 

1588.  Crops. 

1589.  Movable    property   of  public   service   corporation. 

1590.  Corporation  stock — Attachment  and  execution. 

1591.  Corporate  franchises. 

1592.  Particular  estates. 
1593-  Equitable  interests. 

1594.  Property  in  custodia  legis. 

ARTICLE  III 

ISSUANCE,  FORM,  AND  REQUISITES 

1595.  Issuance. 

1596.  On  abstract  or  transcript  of  justice. 

1597.  To  sheriff  of  another  county. 

1598.  After  death. 

1599.  Time. 

1600.  Contents— Forms. 

1601.  Amount. 

1602.  Alias  writ. 

1603.  Seal. 

1604.  Amendment. 

1605.  Collateral  attack. 

ARTICLE  IV 

LEVY  AND  ENFORCEMENT 

1606.  Enforcement — Exemptions. 

1607.  Homestead  exemption. 

1608.  Exemptions  not  to  apply,  when. 

1609.  Exemption  of  personalty  not  to  apply,  when. 

1610.  Pensions. 

1611.  Ministers'  libraries- 

1612.  Motor    vehicles — Claiming    exemptions — Damages. 
1613-  Benevolent  corporations. 

1614.  Order  to  appear — Forms. 

1615.  Priorities  between  executions. 

1616.  Attachments  and  executions — Who  may  levy. 

1617.  Void  when  otherwise  levied. 

1618.  The  levy. 

1619.  Advance  of  printer's  fees. 

1620.  Appraisement  and  return. 

1621.  Property  of  officer. 

1622.  Excessive  levy. 

1623.  Appraisement  waived. 

1624.  Mortgaged  chattels. 


TABLE  OF   CONTENTS  lv 


Sections 

1625.  Corporate  stock. 

1626.  Redelivery  bond — Form. 

1627.  Delivery  on  execution. 

1628.  Quashing  execution — Form. 

1629.  Injunction. 

1630.  Creation  of  lien. 

1631.  Dependent  on  levy. 

1632.  Liens  prior  to  execution. 
1633-  Duration  of  lien  on  realty. 

1634.  Claims  of  third  persons— Bond— Form. 


ARTICLE  V 

SALE  AND  REDEMPTION 

1635.  Duty  of  officer. 

1636.  Place  of  sale— Who  may  purchase. 

1637.  Alias  execution. 

1638.  Time  of  sale. 

1639.  Notice  of  sale. 

1640.  Confirmation  of  sale. 

1641.  Setting  aside  sale — Form  of  motion  and  order. 

1642.  Waiver  and  estoppel. 

1643.  Collateral  attack. 

1644.  Presumption  of  validity. 

1645.  Recovery  of  amount  bid. 

1646.  Title  of  purchaser  and  interest  acquired. 

1647.  Sheriff's  deed— Form. 

1648.  Possession. 

1649.  Corporate  stock. 

1650.  Corporate  franchise — Form  of  certificate  of  purchase. 

1651.  Redemption  of  franchise. 

1652.  Irregularities. 

1653.  Reversal  of  judgment. 


ARTICLE  VI 

PROCEEDS.  AMERCEMENT,  AND  RETURN 

1654.  Clerk. 

1655.  Amercement — Forms. 

1656.  Execution  mailed. 

1657.  Distribution    among    execution    creditors. 

1658.  Surplus. 

1659.  Return — Form. 

1660.  Neglect  of  officer. 

1661.  Payment. 


Ivi 


TABLE  OF   CONTENTS 


ARTICLE  VII 

SUPPLEMENTAL  PROCEEDINGS 
Sections 

1662.  In  general. 

1662a.  Examination  of  debtor  and  others — Arrest — Contempt. 

1663.  Reference — Form. 

1664.  Receivers — Order  of  appointment — Form. 

1665.  Continuance. 

1666.  Lien  on  funds- 

1667.  Fees  and  costs. 

1668.  Contempt. 

1669.  Orders. 

1670.  Judgment  enforced  after  death. 


ARTICLE  VIII 

WRONGFUL  EXECUTION 
1671.     Conversion — Damages. 


CHAPTER  XXII 

JUDICIAL  SALES 

1672.  Judgment  or  order — Forms. 

1673.  Appraisement. 

1674.  Authority  to  sell. 

1675.  Notice. 

1676.  Return,  confirmation,  and  objections. 

1677.  Foreclosure. 

1678.  Opening  or  vacating  sale — Forms. 

1679.  Resale — Form  of  order. 

1680.  Collateral  attack. 

1681.  Title  and  rights  of  purchaser. 

1682.  Taxes. 

1683.  Wrongful  sale- 

1684.  Validity. 

1685.  Foreclosure  sale. 

1686.  Without  appraisement. 

1687.  Right  of  redemption. 

1688.  Tax  sales. 

1689.  Estray  sales. 


CHAPTER  XXIII 

REPLEVIN 

1690-1703.  Article  I. — Rights  and  defenses. 

1704-1707.  Article  II. — Jurisdiction   and   parties. 

1708-1721.  Article  III — Proceedings  for  taking  and  redelivery  of  property. 

3722-1731.  Article  IV. — Pleadings  and  evidence. 


TABLE   OF   CONTENTS 


Ivii 


Sections 

1732-1733.     Article  V.— Damages. 

1734-1752.     Article  VI. — Trial,  judgment,  enforcement  of  judgment,  and  re- 
view. 
1753-1756.    Article  VII. — Liabilities  on  bonds    and  undertakings. 


ARTICLE  I 

RIGHTS  AND  DEFENSES 

1690.  Remedy— Nature. 

1691.  Property  subject. 

1692.  Scope— Equity. 

1693.  Liens  on  animals* 

1694.  Property   seized   under    prohibitory   law. 

1695.  Rent— Crop. 

1696.  Purchaser  with  notice  liable- 

1697.  Plaintiffs  right  to  possession. 

1698.  Detention  by  defendant. 

1699.  Defendant's  possession. 
1700-  Conditions  precedent- 

1701.  Demand  for  return. 

1702.  Defenses. 

1703.  Estoppel. 

ARTICLE  II 

JURISDICTION  AND  PARTIES 

1704.  Waiver  of  jurisdiction. 

1705.  Plaintiff. 

1706.  Defendant. 

1707.  Intervention   and   substitution." 


ARTICLE  III 

PROCEEDINGS  FOR  TAKING  AND  REDELIVERY  OF  PROPERTY 

1708.  In  general. 

1709.  Affidavit — Form. 

1710.  Replevin  undertaking — Form. 

1711.  Order  of  replevin — Form. 

1712.  To  different  counties. 

1713.  Execution  of  order. 

1714.  Officer  may  forcibly  enter  buildings. 
•  1715.  Custody  of  property. 

1716.  Statutory  provisions  for  delivery  by  attachment. 

1717.  Redelivery  to  defendant — Undertaking — Form. 

1718.  Plaintiffs'  objection  to  sureties — Form. 
1719-  Effect  of  redelivery. 

1720.  Quashing  writ — Forms. 

1721.  Return. 


Iviii  TABLE   OF   CONTENTS 

ARTICLE  IV 

PLEADINGS  AND  EVIDENCE 

Sections 

1722.  Complaint — Form  and  requisites. 

1723.  Demand. 

1724.  Amended  and  supplemental  complaint. 

1725.  Amendment  of  affidavit. 

1726.  Issues,  proof,  and  variance — Matters  to  be  proved. 

1727.  Variance. 

1728.  Burden  of  proof. 

1729.  Defenses  under  answer — General  denial. 
1730-  Evidence  admissible. 

1731.  Sufficiency  of  evidence. 

ARTICLE  V 

DAMAGES 

1732.  Elements  of  compensation. 

1733.  Exemplary  damages. 

ARTICLE  VI 

TRIAL,  JUDGMENT,  ENFORCEMENT  OF  JUDGMENT,  AND  REVIEW 

1734.  Failure   to   prosecute- 

1735.  Scope  of  inquiry. 

1736.  Trial. 

1737.  Questions  for  jury. 

1738.  Directed   verdict — Instructions. 

1739.  Verdict    and    findings — Requisites. 

1740.  Value  of  property — Description. 

1741.  New  trial. 

1742.  Judgment — In  general — Form. 

1743.  For  defendant. 

1744.  Description  of  property. 

1745.  Possession  or  return. 

1746.  For  value  of  property. 

1747.  Judgment  in  alternative. 

1748.  Damages. 

1749.  Operation  and  effect. 

1750.  Enforcement    of  judgment. 

1751.  Appeal  and  error. 

1752.  Costs. 

ARTICLE  VII 

LIABILITIES  ON  BONDS  AND  UNDERTAKINGS 

1753.  Replevin  bonds. 

1754.  Redelivery  bonds. 

1755.  Discharge  of  sureties. 

1756.  Extent  of  liability. 


TABLE   OF   CONTENTS 


lix 


CHAPTER  XXIV 

EJECTMENT 


Sections 

1757-1759.  Article  I.— Nature  and  right  of  action. 

1760-1766.  Article  II — Trial,  recovery,  and  defenses- 

1767-1769.  Article  III.— Damages. 


ARTICLE  I 

NATURE  AND  RIGHT  OF  ACTION 

1757.  Possessory  right. 

1758.  Form  of  action. 

1759.  Plaintiff  must  have  right  at  commencement  of  action. 

ARTICLE  II 

TRIAL,  RECOVERY,  AND  DEFENSES 

1760.  Title  to  sustain  action. 
1760a.     Petition— Form. 

1761.  Right  to  recover. 

Oil  leases. 

Recovery    where   right  ceases  during  action. 
Defenses. 

Evidence  and  instructions. 
New  trial. 


1762. 
1763. 
1764. 
1765. 
1766. 


ARTICLE  III 

DAMAGES 


1767.  Questions  to  be  determined. 

1768.  Improvements  and  taxes. 

1769.  Recovery  of  rent. 


CHAPTER  XXV 

AUXILIARY  PROCEEDINGS 

1770-1848.  Article  I— Attachment. 

1770-1773.  Division  I. — Nature  and  grounds. 

1774-1777.  Division  II — Property  subject. 

1778-17<S3.  Division  III.— Procedure. 

1784-1793.  Division  IV.— Order. 

1794—1817.  Division  V. — Levy,  lien,  custody,  and  disposition  of  property. 

1818-1834.  Division  VI.— Discharge  of  attachment. 

1S35-1S39.  Division  VII. — Claims  by  third  persons. 

3840-1848.  Division  VIII.— Wrongful  attachment. 

1849-1880.  Article  II.— Garnishment. 


Ix 


TABLE  OF   CONTENTS 


Sections 

1849-1851.  Division  I. — Nature  and  grounds- 

1852-1857.  Division  II. — Persons  and  property  subject. 

1858-1868.  Division  III. — Procedure. 

1869-1874.  Division  IV — Operation  and  effect. 

1875-1876.  Division  V. — Discharge  of  garnishment. 

1877-1878.  Division  VI.— Claims  by  third  persons. 

1879-1880.  Division  VII. — Wrongful   garnishment. 

1881-1908.  Article  III.— Receivers. 

1909-1915.  Article  IV.— Reference. 

1916-1923.  Article  V.— Lis  pendens. 


ARTICLE  I 

ATTACHMENT 

DIVISION  I. — NATURE  AND  GROUNDS 

1770.  Purpose  and  nature. 

1771.  Grounds. 

1772.  Rent. 

1773-  On  claim  not  due. 

DIVISION  II. — PROPERTY  SUBJECT  TO  ATTACHMENT 

1774.  Personal  property. 

1775.  Mortgaged  chattels. 

1776.  Real  property. 

1777.  Property  in  custodia  legis. 

DIVISION  III.— PROCEDURE 

1778.  Jurisdiction  and  venue. 

1779.  Affidavit— Form. 

1780.  *       Amendment. 

1781.  Bond — Form. 

1782.  Additional  security. 

1783.  Judgment. 

DIVISION  IV.— ORDER 

1784.  Attachment  order — Form. 

1785.  Issuance. 

1786.  Several  orders — To  different  counties. 

1787.  Defects. 

1788.  Service  of  process. 

1789.  By   publication — Form   of  affidavit. 

1790.  Return — When  made. 

1791.  Contents  and  Form. 

1792.  Defects. 

1793.  Operation  and  effect. 


TABLE  OP  CONTENTS  Ixi 


DIVISION  V. — LEVY,  LIEN,  CUSTODY,  AND  DISPOSITION  OF  PROPERTY 

Sections 

1794.  Execution  of  order — Inventory  and  appraisement. 

1795.  Successive  levies. 

1796.  Return. 

1797.  Creation  of  lien. 

1798.  Operation  and  effect. 

1799.  Priority — How  determined — Reference. 

1800.  Between  attachments  and  other  liens. 

1801.  Transfer— Notice. 

1802.  Duration  of  liens. 

1803.  Release  or  abandonment. 

1804.  Custody  of  property. 

1805.  Receiver. 

1806.  Duties. 

1807.  Notice  to  debtors. 

1808.  Report  of  proceedings. 

1809.  Sheriff  as  receiver. 

1810.  Redelivery  bond — Form. 

1811.  Disposition  of  property. 

1812.  Judgment  for  plaintiff. 

1813.  Delivery  to  sheriff. 

1814.  Possession  by  sheriff. 

1815.  Confirming  or  setting  aside  sale — Form  of  order. 

1816.  Surplus  property. 

1817.  Interest  conveyed. 

DIVISION   VI. — DlSCHABGE  OF  ATTACHMENT 

1818.  Form  of  remedy. 

1819.  Grounds — In  general. 

1820.  Irregular  proceedings. 

1821.  Jurisdiction. 

1822.  Persons  who  may  move. 

1823.  Proceedings  on  motion.  . 

1824.  Affidavits  of  defendant 

1825.  Affidavits  of  plaintiff. 

1826.  Hearing. 

1827.  Evidence. 

1828.  Burden  of  proof. 

1829.  Dissolution — In  general. 

1830.  Death  of  defendant. 

1831.  Security  to  discharge. 

1832.  Effect  of  dissolution. 

1833.  Judgment — Damages. 

1834.  Liability  on  bond. 

DIVISION  VII.— CLAIMS  BY  THIRD  PERSONS 

1835.  Ownership — Liens. 
1836-  Grounds  for  contest. 

1837.  Estoppel — Mistake.  « 

1838.  Proceedings. 

1839.  Trial. 


Ixii  TABLE  OF  CONTENTS 

DIVISION  VIII.— WRONGFUL  ATTACHMENT 

Sections 

1840.  Grounds  of  liability. 

1841.  Wrongful  levy. 

1842.  Actions — Defenses. 

1843.  Pleading. 

1844.  Set-off— Cross-action. 

1845.  Evidence. 

1846.  Dismissal. 

1847.  Damages. 

1848.  Who  liable. 

ARTICLE  II 

GARNISHMENT 
DIVISION  I.— NATURE  AND  GROUNDS 

1849.  When  authorized.     ' 

1850.  Nature  and  purpose- 

1851.  After  return  of  execution. 

DIVISION  II. — PERSONS  AND  PROPERTY  SUBJECT 

1852.  Nonliability  of  garnishee — Judgment. 

1853.  Exemption  from  garnishment. 

1854.  Contractual    interest — Judgments — Plaintiff. 

1855.  Possession  and  ownership. 

1856.  Assignment. 

1857.  Partnership. 

DIVISION  III. — PROCEDURE 

1858.  Pleadings — Proceedings — Affidavit    and    bond — Interrogatories- 

Forms. 

1859.  Garuishee  summons— Form. 

1860.  Service — Appearance. 

1861.  Subsequent  affidavits  and  summons. 

1862.  Answer  or  affidavit  of  garnishee — Form. 

1863.  By  whom  made. 

1864.  Time  Of  corporation  to  answer. 

1865.  Issues  and  trial. 

1866.  Payment  into  court. 

1867.  Default   of  garnishee — Judgment — Contempt. 

1868.  Judgment. 

DIVISION  IV  .—OPERATION  AND  EFFECT 

1869.  Liability  of  garnishee. 

1870.  Lien— Priority. 

1871.  Defenses — Exemption — Judgments. 

1872.  Action  by  defendant  against  garnishee. 

1873.  Costs. 

1874.  Injunction. 

DIVISION  V. — DISCHARGE  OF  GARNISHMENT 

1  S7.">.     Grounds — Motion — Form. 

1876.     Bond  releasing  garnishment — Form — Exceptions. 


TABLE  OF  CONTEXTS  Ixili 

DIVISION  V I.— CLAIMS  BY  THIRD  PERSONS 
Sections  . 

1877.  Disclosure  by  garnishee — Order — Notice — Default. 

1878.  Action  by  claimant- 

DIVISION  VII.— WRONGFUL  GARNISHMENT 

1879.  Grounds  of  liability. 

1880.  Measure  of  damages. 

ARTICLE  III 

RECEIVERS 

1881.  Grounds  and  occasion  for  receivership. 

1882.  Particular  instances. 

1883.  Corporations — Involuntary   dissolution. 

1884.  Petition— Form. 

1885.  Parties. 

1886.  Jurisdiction. 

1887.  Notice — Order — Forms. 

1888.  Eligibility. 

1889.  Oath  and  bond— Forms. 

1890.  Liability  on  bond. 

1891.  Objections— Waiver— Collateral  attack. 

1892.  Contempt — Interference  with   receiver. 

1893.  Vacation  of  order — Supreme  Court — Form. 

1894.  Powers. 

1895.  Title  and  custody  of  property. 

1896.  Liens- 

1897.  Disposition  of  litigated  property — Order — Form. 

1898.  Existing  contracts. 

1899.  Investment    of    funds — Application — Order — Forms. 

1900.  Receiver's  sales. 

1901.  Distribution  and  disposition. 

1902.  Receivership  expenses. 

1903.  Taxes. 

1904.  Compensation. 

1905.  Appeals. 

1906.  Actions  by  and  against  receivers. 

1907.  Liability  of  plaintiff  and  third  persons. 

1908.  Additional  forms. 

ARTICLE  IV 
REFERENCE 

1909.  Reference  by  consent — Stipulation — Form. 

1910.  Upon  application  or  court's  motion — Order — Form. 

1911.  Reference  In  vacation. 

1912.  Referee— Appe'utment,  qualification,   and  compensation — Order — 

Oath — Forms. 

1913.  Trial — Reports — Exceptions— Forms. 

1914.  Review  by  court. 

1915.  New  trial. 


Ixiv 


TABLE   OF   CONTEXTS 


ARTICLE  V 


LIS   PENDENS 


Sections 

1916.  Theory  of  lis  pendens- 

1917.  Notice  of  action. 

1918.  Jurisdiction. 

1919-  Pendency  of  action. 

1920.  Amendment. 

1921.  Transfers  pending  suit. 

1922.  Unrecorded  deeds. 

1923.  Persons  bound   by   decree. 


VOLUME  III 


CHAPTER  XXVI 

PROCEEDINGS  IN  EQUITY 

1924-1926-  Article  I. — Equitable  remedies 'in  general. 

1927-1970.  Article  II. — Divorce  and  alimony. 

1927-1934.  Division  I — Grounds. 

1935-1937.  Division  II — Defenses. 

1938-1949.  Division  III. — Jurisdiction  and   procedure. 

1950-1963.  Division  IV — Awards. 

1964-1970.  Division  V. — Custody  and  support  of  children. 

1971-1983.  Article  III.— Quieting  title- 

1971-1974.  Division  I. — Right  of  action  and  defenses. 

1975-1980.  Division  II. — Proceedings  and  relief. 

1981-1983-  Division  III. — Government  land. 

1984-1999-  Article  IV- — Specific  performance. 

1984-1987.  Division  I. — Grounds,  n'ature  of  action,  and  defenses. 

1988-1999.  Division  II — Enforceable     contracts     and     enforcement     of 

same. 

2000-2030.  Article  V— Partition. 

2000-2003.  Division  I. — Right  of  action- 

2004-2020-  Division  II. — Proceedings  and  relief. 

2021-2030-  Division  III. — Partition  in  county  court. 

2031-2079.  Article  VI.— Injunction. 

2031-2038.  Division  I. — Nature  and  grounds. 

2039-2055.  Division  II — Subjects  and  relief. 

2056-2066.  Division  III. — Restraining   order   and   temporary   injunction. 

2067-2071-  Division  IV-— Contempt. 

2072-2079.  Division  V.— Liability  on  bonds. 

2080-2097.  Article  VII. — Foreclosure. 


TABLE  OF  CQNTENTS 


Ixv 


ARTICLE  I 

EQUITABLE  REMEDIES  IN  GENERAL 

Sections 

1924.  Maxims,  principles,  and  application. 

1925.  Remedies. 

1926.  Laches. 

ARTICLE  II 

DIVORCE  AND  ALIMONY 
DIVISION  I. — GROUNDS 

1927.  Enumeration  of  grounds. 
1928-    Abandonment. 

1929.  Pregnancy  before  marriage — Impotency. 

1930.  Cruelty. 

1931.  Fraudulent  contract. 

1932.  Habitual  drunkenness. 

1933.  Neglect  of  duty. 

1934.  Marriage  of  incompetents  voidable. 

DIVISION  II. — DEFENSES 

1935.  Insanity. 

1936.  Condonation. 

1937.  Res   judicata. 

DIVISION  III. — JURISDICTION  AND  PROCEDURE 

1938.  Residence. 

1939.  Separate  domicile. 

1940.  Domicile  to  obtain  a  divorce. 

1941.  Petition — Summons  or  notice — Forms. 

1942.  Answer — Form. 

1943.  Default. 

1944.  Evidence. 

1945.  Appeal — Remarriage. 

1946.  Decree — Contents — Form. 

1947-  Vacation  and  modification — Motions — Orders — Forms. 

1948.  Collateral  attack. 

1949.  Effect. 

DIVISION  IV.— AWARDS 

1950.  Where  divorce  refused. 

1951.  Jurisdiction  of  person  and  property. 

1952.  Orders — Forms. 

1953.  Restraining  order — Form. 

1954.  Temporary  alimony  and  expenses — Form. 

1955.  Permanent  alimony  and  division  of  property. 

1956.  Without  divorce. 

1957.  Amount. 

1958.  Modification  of  decree. 

1959.  Release  of  obligation. 

1960.  Agreements  of  parties. 

1961.  Disposition  of  property. 

HON.PL.&  PRAC.— e 


TABLE   OF   CONTENTS 

Sections 

1962.  Construction  and  effect  of  decree. 

1963.  Fraudulent  conveyances. 

DIVISION  V. — CUSTODY  AND  SUPPORT  OF  CHILDREN 

1964.  Jurisdiction. 

1965.  Decree — Form — Grounds. 

1966.  Effect. 

1967.  Modification. 

1968.  Enforcement. 

1969.  Award  as  to  support. 

1970.  Support  where  no  provision  decreed. 

ARTICLE  III 

QUIETING  TITLE 

DIVISION  I.— RIGHT  OF  ACTION  AND  DEFENSES 

1971.  Possession — Nature  of  action. 

1972.  Cloud  on  title. 

1973.  Title  to  support  action. 
1974-     Defenses. 

DIVISION  II. — PROCEEDINGS  AND  RELIEF 

1975.  Petition — Form. 

1976.  Cotenants. 

1977.  Answer — Disclaimer — Forms- 

1978.  Reply. 

1979.  Parties. 

1980.  Decree — Form. 

DIVISION  III.— GOVERNMENT  LAND 

1981.  Patent  erroneously  issued. 

1982.  Actions. 

1983.  Hearing  and  findings. 

ARTICLE  IV 

SPECIFIC  PERFORMANCE 
DIVISION  I. — GROUNDS,  NATURE  OF  ACTION,  AND  DEFENSES 

1984.  Grounds  of  relief. 

1985.  Nature  of  action. 

1986.  Discretion  of  court. 

1987.  Defenses. 

DIVISION  II.— ENFORCEABLE  CONTRACTS  AND  ENFORCEMENT  OF  SAME 

1988.  Requisites  and  validity. 

1989.  Mutual  obligations. 

1990.  Consideration. 

1991.  Oral  contracts— Statute  of  frauds. 

1992.  Fraud — Illegal   contracts. 


TABLE  OF  CONTENTS 

Sections 

1993.  Options. 

1994.  Rescission  or  abandonment. 

1995.  Real  property — Tender — Delay. 

1996.  Laches. 

1997.  Contracts  to  devise. 

1998.  Personal  services. 

1999.  Performance  before  trial. 


bcvii 


ARTICLE  V 

PARTITION 
DIVISION  I.— RIGHT  OF  ACTION 

2000.  Property  subject  to  partition. 

2001.  Possession  and  cotenancy. 

2002.  Agreements. 

2003.  Conditions  precedent. 

DIVISION  II. — PROCEEDINGS  AND  RELIEF 

2004.  Jurisdiction. 

2005.  Parties. 

2006.  Pleadings— Forms. 

2007.  Order  for  partition — Form. 

2008.  Commissioners. 

2009.  Allotment  of  portions. 

2010.  Duty — Report — Form. 

2011.  Final  decree — Form. 

2012.  Taking  land  at  appraised  value — Form. 

2013.  Sale— Order— Form. 

2014.  Return  and  deed — Forms. 

2015.  Confirmation  of  Sale — Form. 

2016.  Costs,  fees,  and  expenses. 

2017.  Extent  of  court's  power — Additional  relief  and  orders. 

2018.  Taxes,  rent,  and  incumbrances. 

2019.  Proceeds. 

2020.  Lis  pendens. 

DIVISION  III. — PARTITION  IN  COUNTY  COURT 

2021.  Common  estate — Commissioners. 

2022.  Petition,  parties,  and  notice. 

2023.  Realty  in  different  counties. 

2024.  Notice — Steps  by  commissioners. 

2025.  Division  of  property. 

2026.  Assignment  to  one  owner. 

2027.  Sale  of  estate. 

2028.  Report  of  proceedings. 

2029.  Assignment  of  residue. 

2030.  Advancements. 


Ixviii 


TABLE   OF   CONTENTS 


ARTICLE  VI 


DIVISION  I. — NATURE  AND  GBOUNDS 

Sections 

2031.  Nature  of  remedy — Writ. 

2032.  Anticipated  violation  of  right. 

2033.  Substantial  injury. 

2034.  Defenses — Laches. 

2035.  Res  judicata. 

2036.  Past  wrongs. 

2037.  Adequate  remedy  at  law. 

2038.  Mandatory  injunction. 

DIVISION  II. — SUBJECTS  AND  RELIEF 

2039.  Tax  and  nuisance. 

2040.  Civil  actions. 

2041.  Miscellaneous  proceedings. 

2042.  Property  and  conveyances. 

2043.  Trespass. 

2044.  Public  lands. 

2045.  Contracts. 

2046.  Sale  of  good  will. 

2047.  Corporations. 

2048.  Public  officers. 

2049.  Elections. 

2050.  Enforcement  of  ordinances. 

2051.  Public  safety. 

2052.  Criminal  acts  and  prosecutions. 

2053.  Infringement. 

2054.  Board  of  arbitration. 

2055.  Final  decree. 

DIVISION  III. — RESTRAINING  OBDEK  AND  TEMPORARY  INJUNCTION 

2056.  Notice. 

2057.  Restraining  order — Form. 

2058.  Temporary  injunction— Grounds — Form. 

2059.  Bond — Form. 

2060.  Affidavits. 

2061.  Vacating   or   modifying — Motions — Decrees — Forms. 

2062.  Operation  of  orders. 

2063.  Defendant  may  obtain  injunction. 

2064.  Objections. 

2065.  Order  of  injunction — Service — Form. 

2066.  Effective  when. 

DIVISION  IV. — CONTEMPT 

2067.  Disobedience  of  injunction. 

2068.  Jurisdiction  to  punish. 

2069.  Proceedings. 

2070.  Acts  constituting  violation. 

2071.  Defenses. 


TABLE  OP   CONTENTS 


Ixix 


DIVISION  V.— LIABILITY  ON  BONDS 

Sections 

2072.  In  general. 

2073.  Extent  of  liability. 

2074.  Actions — Conditions  precedent. 

2075.  Time  for  suing. 

2076.  Pleading— Forms. 

2077.  Defenses. 

2078.  Evidence. 

2079.  Damages. 

ARTICLE  VII 

FORECLOSURE 

2080.  Real  estate  mortgage. 

2081.  Security  deed. 

2082.  Appraisement. 

2083.  Right  of  redemption. 

2084.  Chattel  mortgages. 

2085.  Notice— Form. 

2086.  Sale. 

2087.  Attorneys'  fees. 

2088.  Pledges. 

2089.  Liens  against  railroads. 

2090.  Mechanics'  and  materialmen's  liens. 

2091.  Parties  to  action. 

2092.  Consolidation. 

2093.  Judgment— Sale. 
2094-  Costs — Attorney  fees. 

2095.  Action  by  owner — When. 

2096.  Lien  claimants  to  share  pro  rata. 

2097.  Liens — Oil    and    gas    property — Rent — Crops. 


CHAPTER  XXVII 

SPECIAL  WRITS 

2098-2158.  Article  I.— Habeas  corpus. 

2098-2118-  Division  J. — Theory   and   purpose. 

2119-2158.  Division  II. — Jurisdiction,  proceedings,  and  relief. 

2159-2237.  Article  II.— Mandamus. 

2159-2173.  Division  I. — Nature  and  grounds. 

2174-2213-  Division  II. — Subjects  of  relief. 

2214-2237.  Division  III.— Procedure. 

2238-2239.  Article  III.— Certiorari. 

2240-2252.  Article  IV. — Prohibition. 

2240-2245.  Division  I. — Nature  and  grounds. 

2246-2252.  Division  II. — Procedure, 

2253-2274-  Article  V. — Quo  warranto. 

2253-2262.  Division  I. — Nature   and   grounds. 

2263-2274.  Division  II. — Procedure. 


1XX  TABLE   OF   CONTENTS 

ARTICLE  I 

HABEAS  CORPUS 

DIVISION  I.— THEORY  AND  PURPOSE 

Sections 

2098.  Nature  of  writ. 

2099.  A  constitutional  right. 

2100.  Other  remedies. 

2101.  Appeal  or  error. 

2102.  Nature  of  detention. 

2103.  Voluntary  surrender. 

2104.  Authority  for  detention. 

2105.  Proceedings  reviewable — Pardons. 

2106.  Arrest  and  commitment. 

2107.  Bail  for  murder  when  preliminary  hearing  was  waived. 

2108.  Judgment  and  commitment. 

2109.  Grounds  for  issuance — In  general. 

2110.  Want  of  jurisdiction   or  authority. 

2111.  Void  proceedings. 

2112.  Irregularities. 

2113.  Former  jeopardy. 

2114.  Void  statute  or  ordinance. 

2115.  Excessive  bail. 

2116.  Who  entitled  to  relief. 

2117.  In  whose  favor  granted. 

2118.  Habeas  corpus  never  suspended. 

DIVISION  II. — JURISDICTION,  PROCEEDINGS,  AND  RELIEF 

2119.  Jurisdiction — In  general. 

2120.  When  in  custody  of  other  court  or  officers. 

2121.  Of  judges  and  judicial  officers. 

2122.  Jurisdiction  of  parties.  % 

2123.  Waiver. 

2124.  Application— Contents— Form. 

2125.  Sufficiency  of  petition. 

2126.  Security  for  costs  not  required. 

2127.  Dismissal — Motion  to  dismiss. 

2128.  Warrant  for  prisoner — P^orm. 

2129.  Execution. 

2130.  Writ  may  issue  to  admit  prisoner  to  bail. 

2131.  Hearing  on  application. 
2182.  Writ— Contents— Form. 

2133.  Delivery  of  writ. 

2134.  Service. 

2135.  On   Sunday. 

2136.  Vacating  writ. 

2137.  Return. 

2138.  Requisites  of  return — Form. 

2139.  Failure  to  make  return. 

2140.  Exception  to  return. 

2141.  Evidence. 


TABLE  OF   CONTENTS 


Ixxi 


Sections 

2142.  Hearing  on  writ  or  return. 

2143.  Scope  of  inquiry  and  power  of  court. 

2144.  Jurisdiction.. 

2145.  Compef  attendance  of  witnesses. 

2146.  Sufficiency  of  evidence. 

2147.  Extradition. 

2148.  Irregularity. 

2149.  Determination  of  particular  issues — Custody  of  infant. 

2150.  Commitment  for  contempt. 

2151.  Reduction  of  bail. 

2152.  Disposition  of  person. 

2153.  Discharge — Notice. 

2154.  Appeal. 

2155.  Effect  of  determination. 

2156.  Effect  of  refusal  to  discharge. 

2157.  Liability  of  officer  for  obeying  writ. 

2158.  Constitutional  provisions. 


ARTICLE  II 

MANDAMUS 

DIVISION  I.— NATURE  AND  GROUNDS 

2159.  Nature  of  writ. 

2160.  By  whom  issued — Who  subject  to  writ. 

2161.  Existence  of  remedy  at  law. 

2162.  Appeal  or  error. 

2163.  Where  other  proceedings  are  pending. 

2164.  Discretion  of  court. 

2165.  Joinder  of  proceedings. 

2166.  Successive  applications. 

2167.  Nature  of  rights  to  be  protected. 

2168.  What  acts  commanded. 

2169.  Demand  of  performance. 

2170.  Defenses. 

2171.  Mandamus  useless. 

2172.  Abatement. 

2173.  Who  entitled  to  relief. 

DIVISION  II.— SUBJECTS  OF  RELIEF 

2174.  Exercise  of  judicial  powers  and  discretion. 

2175.  When  disqualified. 

2176.  Acts  in  violation  of  law. 

2177.  Proceeding  with  cause — Dismissal. 

2178.  Injunction. 

2179.  Trial  by  jury. 

2180.  Entry  of  order. 

2181.  Vacation  of  order. 

2182.  Execution — Judicial  sale. 

2183.  Proceedings  for  review. 

2184.  Enforcement  of  mandate  on  review. 

2185.  Taxation  of  costs. 


Ixxii  TABLE  OF   CONTENTS 

Sections 

2186.  Criminal   proceedings. 

2187.  Officers  subject  to  mandamus. 

2188.  State  officers  and  boards. 

2189.  Ministerial  acts. 

2190.  Exercise  of  discretion. 

2191.  Specific  acts. 

2192.  Elections. 

2193.  Appointment  or  recall  of  public  officers. 

2194.  Title  to  office— Possession. 

2195.  Establishment  of  schools. 

2196.  Public  records. 

2197.  Contracts. 

2198.  Franchise. 

2199.  Grant  of  licenses. 

2200.  Maintenance  and  repair  of  public  bridges. 

2201.  Levy  of  taxes.  . 

2202.  Audit  and  allowance  of  accounts. 

2203.  Issue  of  warrants  and  bonds. 

2204.  Payment  of  warrants. 

2205.  Payment  of  judgments. 

2206.  Levy  of  taxes  to  pay  bonds  and  interest. 

2207.  Payment  of  judgments. 

2208.  Assessment  of  taxes. 

2209.  Payment  of  taxes. 

2210.  Meetings  of  corporations. 

2211.  Corporate  franchises — Construction  of  works. 

2212.  Operation  of  works. 

2213.  Individuals. 

DIVISION  III.— PROCEDURE 

2214.  Jurisdiction. 

2215.  Time  to  sue. 

2216.  Parties  plaintiff — In  name  of  state. 

2217.  Defendants.      . 

2218.  Pleadings. 

2219.  Motion  or  application — Affidavit — Notice — Forms. 

2220.  Disqualification  of  judge. 

2221.  In  Supreme  Court. 

2222.  Writ  of  mandamus— Contents — Forms. 

2223.  Peremptory  writ. 

2224.  Issuance  and  service. 

2225.  Answer  or  return. 

2226.  Motion  to  quash  construed  as  answer. 

2227.  Demurrer. 

2228.  Cross-petition. 

2229.  Demurrer  to  answer  or  return. 

2230.  Dismissal  before  hearing. 

2231.  Conduct  of  trial. 

2232.  Evidence. 

2233.  Scope  of  inquiry. 

2234.  Extent  of  relief. 

2235.  Damages  bar  to  action. 


TABLE  OF  CONTENTS  Ixxil'i 

Sections 

2236.  Punishment  for  contempts-Penalty. 

2237.  Appeal  and  error. 

ARTICLE  III 
CERTIORARI 

2238.  Nature   and    office   of   writ. 

2239.  When  issued — Review — Form. 

ARTICLE  IV 

PROHIBITION 
DIVISION  I. — NATURE  AND  GROUNDS 

2240.  Nature  of  remedy. 

2241.  Existence  of  other  remedies. 

2242.  Proceedings  of  courts  and  judges. 

2243.  Of  public  officers  and  boards. 

2244.  Grounds  for  relief. 

2245.  Prohibition   not   beneficial — Abatement. 

DIVISION  II. — PROCEDURE 

2246.  Jurisdiction. 

2247.  Objections  in  lower  court. 

2248.  Parties. 

2249.  Scope  of  inquiry. 

2250.  Appeal. 

2251.  Dismissal. 

2252.  Forms. 

ARTICLE  V 

QUO  WARRANTO 
DIVISION  I. — NATUBE  AND  GROUNDS 

2253.  Nature  of  writ. 

2254.  Writ  abolished — Civil  action. 

2255.  Statutory  grounds. 

2256.  Existence   of  municipality — School    district   organization. 

2257.  Exercise  of  corporate  franchise. 

2258.  Trial  of  title  to  office — Usurpation. 

2259.  Forfeiture  and  maladministration. 

2260.  Adequate  remedy  at  law. 

2261.  Discretion  of  court. 

2262.  Defenses. 

DIVISION  II.— PROCEDURE 

2263.  Venue. 

2264.  Parties  plaintiff. 

2265.  Control  of  proceedings. 

2266.  Parties  defendant. 

2267.  Petition — Contents — Form. 
226S.     Answer. 


Ixxiv 


TABLE   OF   CONTENTS 


Sections 

2269.  Evidence. 

2270.  Powers  of  court — Inquiry. 

2271.  Judgment — Form. 

2272.  In  contest  for  office. 

2273.  Costs. 

2274.  In  action  against  corporations. 


CHAPTER  XXVIII 

SPECIAL  PROCEEDINGS 

2275-2283.  Article  I. — Dissolution    proceedings. 

2284-2294.  Article  II. — Determination   of  heirship. 

2295-2299.  Article  III.— Homestead  and  marital  rights. 

2300.  Article  IV. — Adoption  and  bastardy. 

2301-2306.  Article  V.— Contempt. 

2307-2317.  Article  VI.— Seizure,  confiscation,  and  forfeiture. 

2318-2338.  Article  VII. — Condemnation  proceedings. 

2339-2352.  Article  VIII.— Restoration  of  records. 

2353-2358.  Article  IX. — Occupying  claimants. 

2359-2360.  Article  X.— Escheat. 

2361-2367.  Article  XI.— Libel  and  slander. 


ARTICLE  I 
DISSOLUTION  PROCEEDINGS 

2275.  Dissolution  of  corporation 

2276.  Voluntary.. 

2277.  Involuntary. 

2278.  Who  may  bring  action. 

2279.  Not  duly  incorporated. 

2280.  Elections. 

2281.  Dissolution   of   insurance   companies. 

2282.  Dissolution  of  partnership. 

2283.  Forms. 

ARTICLE  II 

DETERMINATION    OF    HEIRSHIP 

2284.  Jurisdiction — Appeals. 

2285.  Petition— Who  may  file— Contents. 

2286.  Hearing— Notice— Service. 

2287.  Trial— Judgment— Rehearings. 

2288.  Appeals — How  taken. 

2289.  Method  not  exclusive. 

2290.  Invoking  jurisdiction  in  action  relating  to  real  property. 

2291.  Judgment— Findings. 

2292.  Judgment — Collusiveness. 

2293.  Service  by  publication. 

2294.  Proof  of  service. 


TABLE   OF   CONTENTS 


Ixxv 


.Sections 
2295. 
2296. 
2297. 
2298. 
3299. 


ARTICLE  III 
HOMESTEAD  AND  MARITAL  RIGHTS 

Husbaud  and  wife. 

Effect  of  proceedings. 

Setting  aside  decree. 
Homestead — Insane  spouse. 

Service  of  petition. 


ARTICLE  IV 

ADOPTION  AND  BASTARDY 

2300.  Adoption — Bastardy — Delinquent  children — Majority  rights. 

ARTICLE  V 

CONTEMPT 

2301.  Hearing — Jury  trial. 

2302.  Evidence — Application. 

2303.  Alimony,  support,  and  suit  money. 

2304.  Corporation  commission — Appeal. 

2305.  Burden  of  proof. 

2306.  Injunction    against    liquor    nuisance. 


ARTICLE  VI 

SEIZURE.   CONFISCATION    AND  FORFEITURE 

2307.  Forfeiture  of  property  used  in  violation  of  prohibitory  laws. 

2308.  Searches. 

2309.  Vehicles. 

2310.  Automobiles. 

2311.  Beer. 

2312.  Procedure. 

2313-  Appeals   allowed. 

2314.  Jurisdiction. 

2315.  Complaint. 

2316.  Interplea. 

2317.  Gambling  apparatus. 


ARTICLE  VII 

CONDEMNATION   PROCEEDINGS 

2318.     Condemnation  proceedings — Railroads. 
2319-  Compensation  to  owner. 

2320.  Report — Review — Jury  trial. 

2321.  Appeal — Condemnation   proceedings. 


TABLE  OF  CONTENTS 

Sections 

2322.  Application  of  law. 

2323.  Eminent  domain — Oil  pipe  line  companies. 

2324.  Foreign  corporations  may  not  exercise  eminent  domain. 

2325.  Condemnation  proceedings — Parties  entitled  to  prosecute. 

2326.  Special  proceedings — Eminent  domain — Lands   subject. 

2327.  Procedure — Appeal. 

2328.  Pipe  line  companies. 

2329.  Water  power  companies. 

2330.  Municipalities. 

2331.  Other  persons. 

2332.  Acquisition  by  United  States. 

2333.  Light,  heat,  and  power  companies. 

2334.  Establishment  of  roads   by  county  commissioners. 

2335.  Landowner  may  start  proceedings. 

2336.  Trial  and  evidence. 

2337.  Effect  of  condemnation — Damages. 

2338.  Condemnation  of  Indian  lands. 


ARTICLE  VIII 

RESTORATION  OF  RECORDS 

2339.  Restoration  by  certified  copy. 

2340.  Restoration  where  no  certified  copy  is  to  be  had. 

2341.  Restoration  of  probate  records. 

2342.  Restoration  of  record  in  cases  appealed. 

2343.  County  records- 

2344.  Plats  to  be  restored  by  court  action. 

2345.  An  interested  individual  may  petition — Form. 

2346.  Duties  of  county  commissioners. 

2347.  Abstract  records  may  be  used. 

2348.  Courts  may  act  to  establish  title. 

2349.  Effect  of  court  decree— Form. 

2350.  Certified  copy  of  deed  may  be  recorded. 

2351.  Power  to  act  may  be  in  legal  representative. 

2352.  Admissibility  of  oral  and  other  evidence. 

ARTICLE  IX 
OCCUPYING  CLAIMANTS 

2353.  Reimbursement   for  improvements  and   expenditures. 

2354.  Trial  and  appraisement. 

2355.  Judgment — Appeal. 

2356.  Purchase  by  occupant- 

2357.  Refunding  purchase  money. 

2358.  Where  ejectment  brought. 

ARTICLE  X 

ESCHEAT 

2359.  When  property  escheats. 

2360.  Escheat  proceedings,  how  instituted  and  carried  on. 


TABLE  OF  CONTENTS 


Ixxvii 


ARTICLE  XI 

LIBEL  AND  SLANDER 

Sections 

2361.  Libel   defined. 

^362.  Slander  defined. 

2363.  Privileged    communication   defined. 

2364.  Pleading— Proof  and  defenses. 

2365.  Extent  of  liability. 

2366.  Malice  presumed. 

2367.  Minimum  judgment. 


CHAPTER  XXIX 

APPEAL  AND  REVIEW 

2368-2370.  Article  I.— Origin,  right,  and  mode  of  appeal. 

2371-2373.  Article  II.— Appellate   jurisdiction. 

2374-2379.  Article  III.— Decisions  reviewable. 

2380-2383.  Article  IV.— Eight  of  appeal. 

2387-2418.  Article  V.— Presentation  below. 

2419-2422.     Article  VI.— Parties. 

2423-2431.  Article  VII.— Manner  of  taking  appeal. 

2423-2425.  Division  I. — Time  of  taking  appeal. 

2426-2427.  Division  II.— Deposit  and  bond. 

2428-2431.  Division  III. — Notice,  petition  in  error,  and  appearance. 

2432-2436.  Article  VIII. — Effect  of  appeal,  supersedeas  and  stay. 

2437-2464.  Article  IX. — Transcript  and  case-made. 

2437-2440.  Division  I. — Record  in  general. 

2441-2444.  Division  II. — Transcript. 

2445-2464.  Division  III. — Case-made. 

2465-2468.  Article  X. — Assignment  of  errors. 

2469-2475.  Article  XI.— Briefs. 

2476-2485.  Article  XII. — Dismissal  and  abandonment. 

2486-2489.  Article  XIII — Hearing  and  rehearing. 

2490-2544.  Article  XIV.— Review. 

2490-2499.  Division  I. — Scope  and  extent. 

2500.  Division  II. — Rulings. 

2501-2502.  Division  III — Parties  entitled  to  complain. 

2503-2505.  Division  IV. — Amendments  and  additional  proof. 

2506-2515.  Division  V. — Presumptions. 

2516-2521.  Division  VI. — Discretionary    rulings. 

2522-2524.  Division  VII. — Evidence,   verdict   and  findings. 

2525-2540.  Division  VIII. — Harmless  error. 

2541.  Division  IX. — Waiver  of  error. 

2542-2544.  Division  X. — Intermediate   and   subsequent   appeals. 

2545-2556.  Article  XV.— Decision. 

2557-2562.  Article  XVI.— Bonds. 

2563.  Article  XVII. — Rules  of  Supreme  Court 


TABLE   OF   CONTENTS 

ARTICLE  L 

ORIGIN,  RIGHT,  AND  MODE  OF  APPEAL 

Sections 

2368.  Origin  and  right  of  appeal. 

2369.  Cross-appeals  and  successive  appeals. 

2370.  Consolidation  for  appeal. 

ARTICLE  II 

APPELLATE  JURISDICTION 

2371.  Powers  of  court. 

2372.  Basis  of  jurisdiction. 

2373.  Existence    of    controversy. 

ARTICLE  III 

DECISIONS  REVIEWABLB 

2374.  Final  orders. 

2375.  New  trial. 

2376.  Receivers. 

2377.  Temporary  injunctions. 

2378.  Pleadings. 

2379.  Amount   in   controversy. 

ARTICLE  IV 

RIGHT  OF  APPEAL 

2380.  Persons  entitled. 

2381.  Waiver  of  appeal. 

By  compliance  with  order  or  decree. 
Payment  of  judgment. 
2384.  Payment  of  costs. 

Acceptance  of  benefits. 

2386.  By  selection  of  another  remedy. 

ARTICLE  V 

PRESENTATION  BELOW 

2387.  Issues  in  lower  court. 

2388.  Sufficiency   of  presentation. 

589.     Objections   and    rulings — Venue — Parties — Process — Clerk. 
J390.  Jurisdiction  of  lower  court. 

2391.  Judge  pro  tern. 

2392.  Motions — Incidental    proceedings — Attachments 

2393.  Pleadings. 

2394.  Reference. 


TABLE  OF  CONTENTS  IxxiX 

Sections 

2395.  Conduct  of  trial. 
2396-  Argument  and  conduct  of  counsel. 

2397.  Evidence  and  witnesses. 

2398.  Instructions. 

2399.  Sufficiency  of  court's  findings. 

2400.  The  verdict. 

2401.  Judgment. 

2402.  Report  of  referee. 

2403.  Appeals  from  justice  court. 

2404.  Specific  and  general  objections. 

2405.  Sufficiency  of  objection. 

2406.  Objection  by  motion — Necessity. 

2407.  Objection  to  judgment — Costs. 

2408.  Necessity  for  ruling. 

2409.  Exceptions. 

2410.  As  to  pleadings. 

2411.  Findings  of  jury,  court,  or  referee. 

2412.  Judgment. 

2413.  Rulings  after  judgment. 

2414.  Sufficiency  and  effect— Withdrawal. 

2415.  Timeliness  of  objection  and  exception. 

2416.  Motion  for  new  trial. 

2417.  Presentation  of  errors. 
2418             Time- 

ARTICLE  VI 

PARTIES 

2419.  Necessary    parties. 

2420.  Rules. 

2421.  Death  of  party. 

2422.  Defect  of  parties. 

ARTICLE  VII 

MANNER  OF  TAKING  APPEAL 
DIVISION  I.— TIME  OF  TAKING  APPEAL 

2423.  Periods  applicable. 

2424.  Time   during  which   limitation  runs. 

2425.  Extension  of  time — Dismissal. 

DIVISION  II.— DEPOSIT  AND  BOND 

2426.  Deposit  for  costs. 

2427.  Bond. 

DIVISION  III.— NOTICE,  PETITION  IN  EKROB,  AND  APPEARANCE. 

2428.  Notice  of  appeal  in  open  court. 

2429.  Petition  in  error. 

2430.  Assignment  of  errors. 

2431.  Appearance. 


IxXX  TABLE  OF   CONTENTS 

ARTICLE  VIII 

EFFECT  OF  APPEAL,  SUPERSEDEAS,  AND   STAY 
Sections 

2432.  Suspension    of   jurisdiction    below. 

2433.  Collateral  matters. 

2434.  Undertaking  for  stay — Form. 

2435.  Stay  pending  appeal. 

2436.  Inherent  power  to  grant  stay. 

ARTICLE  IX 

TRANSCRIPT  AND  CASE-MADE 
DIVISION  I. — RECORD  IN  GENERAL 

2437.  Necessity  and  requisites- 

2438.  Presentation  for  review. 

2439.  Conclusiveness  of  record. 

2440.  Conflicts. 

DIVISION  II.— TRANSCRIPT 

2441.  Contents. 

2442.  Matters  presented  for  review. 

2443.  Requisites  and  sufficiency. 

2444.  Certificate. 

DIVISION  III. — CASE-MADE 

2445.  Function  and  necessity. 

2446.  Attached  to  petition — Complete  record — Costs. 

2447.  Service,    amendment,    settlement,    and    filing — Exceptions. 

2448.  Attestation— Filing. 

2449.  Extension  of  time — Motion — Order — Forms. 

2450.  Service. 

2451.  Parties  served. 

2452.  Contents. 

2453.  Form  and  sufficiency. 

2454.  Amendments. 

2455.  Settlement  and  certification. 

2456.  Time  for  settlement. 

2457.  Notice. 

2458.  Death,  expiration  of  term,  or  absence  of  trial  judge. 

2459.  Special  judge — Appellate  court. 

2460.  Filing  in  both  courts. 

2461.  Correction — Notice. 

2462.  Waiver  of  defects. 

2463.  Conclusiveness  of  certificate. 

2464.  Matters  presented  for  review. 


TABLE   OF   CONTENTS  bcXXl 


ARTICLE  X 


Sectlons  ASSIGNMENT  OF  ERRORS 

2465.  Necessity. 

2466.  Requisites  and  sufficiency. 

2467.  Matters  presented   for  review. 

2468.  Amendment. 

ARTICLE  XI 

BRIEFS 

2469.  Necessity. 

j    2470.     Form  and  requisites. 

2471.  Specification    of    errors. 

2472.  Argument. 

2473.  Defective  briefs. 

2474.  Failure  to  file  and  serve. 

2475.  Disposition  of  appeal. 

ARTICLE  XII 

DISMISSAL  AND  ABANDONMENT 

2476.  Voluntary  dismissal. 

2477.  Involuntary  dismissal. 

2478.  Moot  questions. 

2479.  Defects  in  proceedings. 

2480.  Frivolous  appeals. 

2481.  Failure  to  prosecute  appeal. 

2482.  Dismissal  by  court  on  its  own  motion. 

2483.  Motion  for  dismissal. 

2484.  Abandonment. 

2485.  Vacating  order  of  dismissal  and  reinstatement. 

ARTICLE  XIII 

HEARING  AND  REHEARING 

2486.  Advancement — Continuance. 

2487.  Rehearing. 

24S8.  Petition — Form. 

2489.  Matters  considered. 

ARTICLE  XIV 

REVIEW 
DIVISION  I.— SCOPE  AND  EXTENT 

2490.  Scope  in  general. 

2491.  Consideration  of  evidence. 

2492.  Agreed  statement. 

HO??.P:L.&PRAC.— f 


Ixxxii 


TABLE  OF   CONTENTS 


Sections 

2493.  Questions  of  law  and  of  fact. 

2494.  Abstract  and  hypothetical  questions. 

2495.  In  equity  case. 

2496.  Special  findings. 

2497.  Theory  adopted  below. 

2498.  Reason  for  decision. 

2499.  Dependent  on  nature  of  decision. 

DIVISION  II.— RULINGS 

2500.  On  pleadings  and  motions. 

DIVISION  III. — PARTIES  ENTITLED  TO  COMPLAIN 

2501.  In  general. 

2502.  Invited  error,  estoppel,  and  waiver. 

DIVISION  IV. — AMENDMENTS  AND  ADDITIONAL  PROOF 

2503.  Remanding  for  amendment. 

2504.  Amendment  regarded  as  made  in  lower  court. 

2505.  Additional  proofs  in  appellate  court. 

DIVISION  V. — PRESUMPTIONS 

2506.  Burden  of  showing  error. 

2507.  Jurisdiction  and  organization  of  lower  court. 

2508.  Judgment  arid  verdict. 

2509.  Findings. 

2510.  Pleadings. 

2511.  Motions  and  orders. 

2512.  Reference.  , 

2513.  Dismissal,  demurrer  to  evidence,  and  direction  of  verdict. 

2514.  Instructions. 

2515.  Case-made. 

DIVISION  VI. — DISCRETION  ART  RULINGS 

2516.  In  general. 

2517.  Motions  and  pleading. 

2518.  New  trial. 

2519.  Reception  of  evidence  and  examination  of  witnesses. 

2520.  Submission  of  issues. 

2521.  Judgment,  execution,  and  sale. 

DIVISION  VII.— EVIDENCE,  VERDICT  AND  FINDINGS 

2522.  Evidence  and  witnesses. 

2523.  Verdicts. 

2524.  Findings. 

DIVISION  VIII. — HARMLESS  ERBOB 

2525.  Errors  not  affecting  substantial  right. 

2526.  Errors  not  affecting  result. 

2527.  Where  judgment  correct. 

2528.  Presumption  and  prejudice. 


TABLE  OF  CONTENTS  IxXXlii 

Sections 

2529.  Pleadings. 

2530.  Interlocutory  proceedings. 

2531.  Jury  and  trial. 

2532.  Evidence. 

2533.  Statements  and  conduct  of  counsel. 

2534.  Cure  of  error. 

2535.  Demurrer  to  evidence  and  direction  of  verdict. 

2536.  Submission  of  issues  and  instructions. 

2537.  Cure  of  error. 

2538.  Conduct  of  the  jurors. 

2539.  Findings. 

2540.  Judgment. 

DIVISION  IX.— WAIVER  OF  EBKOB 

2541.  Express  and  implied  waiver. 

DIVISION  X. — INTERMEDIATE  AND  SUBSEQUENT  APPEALS 

2542.  Intermediate  courts — Cases  from  justice  court 

2543.  Cases  from  county  court. 

2544.  Subsequent  appeals. 


ARTICLE  XV 

DECISION 

2545.  Decision  in  general. 

2546.  Affirmance. 

2547.  Modification. 

2548.  Reversal. 

2549.  Mandate. 

2550.  Direction  of  judgment. 

2551.  New  trial. 

2552.  Proceedings  in  lower  court. 

2553.  Powers  and  duties. 

2554.  Amendments. 

2555.  Disposition  of  property. 

2556.  Jurisdiction  of  appellate  court  after  remand. 

ARTICLE  XVI 

BONDS 

2557.  Liability  on  bonds. 

2558.  Action  on  appeal  or  supersedeas  bond. 

2559.  Void  or  defective  appeal. 

2560.  Accrual  or  release  of  liability. 
2561.  Enforcement  of  liability. 

2562.  Extent  of  liability. 


Ixxxiv  TABLE  OP  CONTENTS 

ARTICLE  XVII 

RULES  OF  SUPREME  COURT 

Sections 
2563.    Rules  stated. 

TABLE  OF  STATUTES  CITED 

(Page  2557) 

TABLE  OF  CONSTITUTIONAL  PROVISIONS 

CITED 

(Page  2569) 

TABLE  OF  CASES  CITED 

(Page  2571) 

INDEX 

(Page  2715) 


A  TREATISE 

ON 


HON.PL.&  PBAC.  (I)1 


Ch.  1)  COURTS  AND   COURT  OFFICERS 

CHAPTER  I 

COURTS  AND  COURT  OFFICERS 

Sections 

1-142.     Article  I.— Courts  and  judges. 

1-31.  Division  L — Relating  to  code  practice  In  general. 

32-45.  Division   II. — Judges   in   general. 

46-81.  Division  III. — District  courts  and  judges. 

82-89.  Division    IV. — Superior  courts   and   judges. 

90-113.  Division  V. — County  courts  and  judges. 

114-142.  Division  VI. — Supreme  Court  and  judges. 
143-198.    Article  II. — Other  court  officers. 

143-145.  Division  I. — In  general. 

146-162.  Division  II. — Court  clerks. 

163-172.  Division  III. — Sheriffs  and  other  peace  officers. 

173-198.  Division  IV.— Attorneys. 

ARTICLE  I 

COURTS  AND  JUDGES 

DIVISION  1.— RELATING  TO  CODE  PRACTICE  IN  GENERAL 

Sections 

1.  Courts  open  for  administration  of  justice. 

2.  Due  process. 

3.  Judicial  power  vested  where. 

4.  Judges — Conservators  of  the  peace. 

5.  Title  of  chapter. 

6.  Prior  decisions  and  precedents — Stare  decisis. 

7.  Decisions  of  federal  courts. 

8.  Common  law. 

9.  Obiter  dictum. 

10.  Law  of  the  case. 

11.  Statutes  and  construction. 

12.  Erroneous  words  and  punctuation. 

13.  Rule  of  ejusdem  generis. 

14.  Statute  construed  as  a  whole. 

15.  Statutes  construed  together  or  in  the  light  of  each  other. 

16.  Administrative  construction. 

17.  Provisos  or  exceptions. 

18.  Statute  adopted  from  another  state. 

19.  Adjournment  by  sheriff. 

20.  Publications. 

21.  Affirmation. 

22.  Computation  of  time. 

23.  Surety — Justification. 

24.  Qualifications. 

25.  Real  estate  mortgage  as  bond. 

26.  Valuation  of  real  estate. 

27.  False  valuation — Penalty. 

(3) 


COURTS  AND  COURT  OFFICERS  (Ch.  1 

Sections 

28.  Action  on  bond. 

29.  Several  actions  on  security. 

30.  Submission  of  controversy. 

31.  Impeachment  and  removal  from  office. 

DIVISION  11. — JUDGES  IN  GENERAL 

32.  As  public  officer. 

33.  Judge  pro  tempore. 

34.  Waiver  of  objections. 

35.  Powers  of  special  judges. 

36.  Liabilities. 

37.  Change  of  judge. 

38.  Disqualifications. 

39.  Relationship. 

40.  Bias  and  prejudice. 

41.  Objections  and  procedure. 

42.  Form — Application  for  disqualification  of  judge. 

43.  Waiver  of  disqualifications. 

44.  Acts  of  disqualified  judge. 

45.  Powers  at  chambers. 

DIVISION  111. — DISTRICT  COURTS  AND  JUDGES 

46.  District  court — Where  held. 

47.  Districts  and  judges. 

48.  Sessions — Time  for — Adjournments. 

49.  Change  of  district — Disposition  of  cases  pending. 

50.  Special  terms. 

51.  Adjournment  of  term. 

52.  Two  or  more  judges  sitting  at  same  time. 

53.  Additional  judge. 

54.  District  judges — Expenses. 

55.  Reporter — Appointment — Qualifications: 

56.  Duties  of  court  reporter. 

57.  /  Salary  and  fees. 

58.  Traveling  expenses. 

59.  Tenure  and  oath  of  office. 

60.  Notes  filed — Admissibility  in  evidence — Transcripts. 

61.  Appeal  to  district  court. 

62.  Party  in  default. 

63.  Who  may  appeal. 

64.  When  appeal  must  be  taken. 

65.  Appeal  how  taken. 

66.  Appeal  bond. 

67.  Stay  of  execution. 

68.  Commitment — How  stayed. 

69.  Justification  of  sureties — Increased  bond. 

70.  Appeal  bond  form — Action  upon. 

71.  Appeal  not  to  stay  issue  of  letters. 

72.  Appeal  not  to  stay  order  revoking  letters,  etc. 

73.  Proceedings. 

74.  Powers  of  the  appellate  court. 

(4) 


Art.  1)  COURTS  AND  JUDGES 

Sections 

75.  '          Trial  de  novo. 

76.  Penalty  for  neglect  of  county  judge  to  transmit  record. 

77.  Dismissal  of  appeal — Effect — Costs- 

78.  Enforcement  of  decree. 

79.  Executor's  bond  stands  in  place  of  appeal  bond. 

80.  Reversal  for  error  not  to  affect  lawful  acts. 

81.  Rules  of  district  court. 

DIVISION  IV. — SUPERIOR  COURTS  AND  JUDGES 

82.  Superior  courts  in  general. 

83.  Qualifications  of  judges — Term  of  office. 

84.  Election. 

85.  Procedure — Juries — Appeals. 

86.  Court  stenographer. 

87.  Sheriffs — County  attorneys. 

88.  Judge's  salary. 

89.  Transfer  of  causes. 

DIVISION  V.— COUNTY  COURTS  AND  JUDGEB 

90.  Procedure — Seal. 

91.  Terms  of  court. 

92.  Proceedings  in  vacation — Out  of  court. 

93.  Calendar. 

94.  Stenographer. 

95.  Duties. 

96.  Oath  and  tenure  of  office. 

97.  Fees  for  making  transcripts. 

98.  Ex  officio  court  clerk. 

99.  Compensation. 

100.  Fees — Record. 

101.  Report  of. 

302.  Fees  paid  to  treasurer. 

103.  Special  court  towns. 

104.  Judge — Term  of  office — Qualification. 

105.  To  give  bond. 
306.  Office  and  records. 
107.            Practice  prohibited. 
308.  Temporary  county  judge. 

109.  How  elected. 

110.  Fee  when  affidavit  of  bias  made. 
311.    County  judge— County  attorney— Salary. 

112.  Court  reporters. 

113.  Rules  for  county  court. 

DIVISION  VI.— SUPREME  COURT  AND  JUDGES 

314.    Membership— Quorum— Eligibility— Term    of   office— Vacancies— Juris- 
diction. 

115.  Justices— Judicial  districts— Election— Law  clerks. 

116.  Referees  and  first  law  clerk. 

117.  Chief  justice — Election. 

118.  Vice  chief  justice — Election. 

(5) 


S  i  COURTS  AND  COURT  OFFICERS  (Ch.  1 

Sections 

119.  Justices — Not  to  be  candidate  for  other  office. 

120.  Commencement  of  term. 

121.  Sessions — Opinions. 

122.  Chief  justice — Expiration  of  terms — Election. 

123.  Clerk. 

124.  Law  governing. 

125.  Salaries  of  justices. 

126.  Effect  of  invalidity. 

127.  Jurisdiction — Divisions. 

128.  Appeals  from  county  court. 

129.  Appeals  from  corporation  commission. 
ISO.  Appeals  from  state  labor  commission. 

131.  Formation  of  new  counties. 

132.  Speedy  heariqg. 

133.  Original  jurisdiction — Division  of  assets  and  liabilities  among  counties. 

134.  Parties — Proceedings. 

135.  Constitution. 

136.  Jurisdiction — Removal  of  state  capital  and  normal  schools. 
.137.  Jury  trial  when. 

138.  Trial. 

139.  Jury — How  selected. 

140.  Costs — Witness  fees. 

141.  Reports. 

142.  Supreme  court  rules. 

DIVISION  I. — RELATING  TO  CODE  PRACTICE  IN  GENERAL 

§  1.     Courts  open  for  administration  of  justice 

"The  courts  of  justice  of  the  state  shall  be  open  to  every  person, 
and  speedy  and  certain  remedy  afforded  for  every  wrong  and  for 
every  injury  to  person,  property,  or  reputation;  and  right  and  jus- 
tice shall  be  administered  without  sale,  denial,  delay,  or  prejudice."1 

This  provision  is  self-executing,2  and  prohibits  the  trial  of  any 
cause  by  a  judge  or  juror  prejudiced  against  either  party.  Prohibi- 
tive clauses  of  a  Constitution  are  always  self-executing  and  require 
no  legislative  provision  for  their  enforcement.3  This  clause  ex- 
pressly requires  that  courts  grant  relief  in  a  speedy  manner.  It 
does  not,  hpwever,  require  a  jury  trial  in  proceedings  under  the 
Workmen's  Compensation  Act  (Laws  1915,  c.  246), 4  or  in  a  pro- 

1  Const.  Okl.  art.  2,  §  6. 

2  Mayes  v.  Pitchford,  26  Okl.  129,  109  P.  821. 

3  State  ex  rel.  Smith  v.  Brown,  24  Okl.  433,  446,  103  P.  762 ;    Ex  parte 
Hudson,  3  Okl.  Cr.  393,  106  P.  540;    Lewis  v.  Russell,  4  Okl.  Cr.  129,  111  P. 
818. 

4  Adams  v.  Iten  Biscuit  Co.,  63  Okl.  52,  162  P.  938, 

(6) 


Art.  1)  COURTS  AND  JUDGES  §    2 

ceeding  by  the  state  before  the  corporation  commission  to  recover 
a  refund  of  excess  rates,5  nor  does  it  give  a  party  a  right  to  a  trial 
before  a  particular  judge.6 

§  2.     Due  process 

"No  person  shall  be  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law."  T 

This  provision  does  not  always  require  judicial  hearings.  It  re- 
quires such  hearings  in  matters  of  a  purely  judicial  nature,  but 
not  in  matters  purely  administrative,  such  as  matters  of  taxation.8 
It  requires  only  that  a  party  shall  have  reasonable  notice  and  op- 
portunity to  be  heard.9  That  the  trial  court  fails  to  follow  the  stat- 
ute in  taxing  costs  raises  no  question  as  to  violation  of  the  due  pro- 
cess clause.10 

A  citizen  has  no  property  in  a  defense,  and,  while  rights  accrued 
to  him  under  existing  laws  and  which  have  thereby  become  vested 
may  not  be  taken  away  by  a  change  of  rule,  he  cannot  complain  that 
he  is  denied  due  process  of  law,  where  a  rule  is  changed  before  any 
rights  have  accrued  to  him  thereunder.11 

6  Pioneer  Telephone  &  Telegraph  Co.  v.  State,  40  Okl.  417,  138  P..  1033. 

6  State  v.  Brown,  8  Okl.  Cr.  40,  126  P.  245,  Ann.  Cas.  1914C,  394. 

7  Const.  Okl.  art.  2,  §  7.     Exercise  by  commissioner  of  land  office  of  min- 
isterial and  judicial  functions  as  to  state  school  lands  under  Laws  1907-08, 
c.  49,  art.  2,  and  Rev.  Laws  1910,  §§  7177,  7186,  7187,  is  not  a  denial  of  "due 
process  of  law,"  either  under  Const.  Amend.  U.  S.  14,  or  Const.  Okl.  art.  2, 
§  7.    Wilhite  v.  Cruce  (Okl.)   172  P.  962. 

The  equitable  and  common-law  jurisdiction  granted  to  the  courts  by  the 
organic  act  of  the  territory  of  Oklahoma  were  a  part  of  that  due  process  of 
law  which  is  guaranteed  to  every  citizen  as  a  protection  of  his  life,  liberty, 
and  property.  Smith  v.  Speed,  66  P.  511,  11  Okl.  95,  55  L.  R.  A.  402.  The 
jurisdiction  of  the  courts  in  equity  as  provided  in  the  organic  act  of  Okla- 
homa Territory  is  as  much  due  process  of  law  as  the  right  of  trial  by  jury  in 
cases  at  common  law.  Id. 

8  Anderson  v.  Ritterbusch,  22  Okl.  761,  98  P.  1002 ;  Anderson  v.  Ritterbusch, 
98  P.  1002,  22  Okl.  761. 

0  Where  a  motion  to  vacate  a  decree  of  foreclosure  and  sale  thereunder  was 
made  by  the  owner  of  the  equity  of  redemption  upon  whom  no  valid  service 
was  had  in  the  foreclosure  proceeding,  and  the  grantee  of  the  purchaser  at 
the  foreclosure  sale  was  served  with  notice  of  such  motion,  appeared  and 
answered,  filed  an  affidavit  in  opposition  to  the  motion,  and  also  a  motion 
to  dismiss  the  motion  to  vacate,  actively  conducted  the  defense,  and  appeal- 
ed from  the  decree,  a  decree  setting  aside  the  judgment  of  foreclosure  ami 
permitting  the  owner  of  the  equity  of  redemption  to  appear,  plead,  and  set 
up  her  defense,  did  not  deny  to  the  grantee  due  process  of  law.  Harding 
v.  Gillett,  107  P.  665,  25  Okl.  199. 

10  Cramer  v.  Farmers'  State  Bank  of  Galva,  158  P.  1111,  98  Kan.  641. 

"  Dickinson  v.  Cole  (Okl.)  177  P.  570. 

(7) 


§§  2-6  COURTS  AND  COURT  OFFICERS  (Ch.  1 

Failure  to  give  notice  of  an  application  for  alimony  pendente  lite 
is  not  a  deprivation  of  property  without  due  process  of  law.12 

Notice  by  publication,  consisting  of  two  successive  insertions  in 
a  paper  of  general  circulation  in  the  county  in  which  the  land  to  be 
embraced  within  the  boundaries  of  a  drainage  district  is  located,  is 
sufficient  to  constitute  due  process  of  law.13 

A  judgment  of  the  district  court  affirming  the  action  of  the  coun- 
ty commissioners  on  a  claim,  without  giving  claimant  a  chance  to  be 
heard,  would  be  a  deprivation  of  property  without  due  process.14 

The  statute  providing  that,  if  a  foreign  corporation  doing  busi- 
ness in  the  state  fails  to  appoint  an  agent  therein  for  service,  service 
may  be  made  on  the  secretary  of  state,  is  not  a  denial  of  due  process 
of  law.16 

§  3.    Judicial  power  vested  where 

"The  judicial  power  of  this  state  shall  be  vested  in  the  Senate, 
sitting  as  a  court  of  impeachment,  a  Supreme  Court,  district  courts, 
county  courts,  courts  of  justices  of  the  peace,  municipal  courts,  and 
such  other  courts,  commissions  or  boards,  inferior  to  the  Supreme 
Court,  as  may  be  established  by  law."  16 

§  4.    Judges — Conservators  of  the  peace 

"All  judges  of  courts  of  this  state,  and  justices  of  the  peace,  shall, 
by  virtue  of  their  office,  be  conservators  of  the  peace  throughout 
the  state."  1T 

§  5.    Title  of  chapter 

The  chapter  relating  thereto  shall  be  known  as  the  Code  of  Civil 
Procedure  of  the  state  of  Oklahoma.18 

§  6.     Prior  decisions  and  precedents — Stare  decisis 

Principles  of  public  policy  demand  that  a  fixed  construction  of 
constitutional  law  should  not  be  unsettled,  unless  clearly  erro- 

12  Gundry  v.  Gundry,  68  P.  509,  11  Okl.  423. 

18  Riley  v.  Carrico,  110  P.  738,  27  Okl.  33. 

14  Cherokee  County  Pub.  Co.  v.  Cherokee  County,  48  Okl.  722,  151  P.  187. 

18  Title  Guaranty  &  Surety  Co.  v.  Slinker,  143  P.  41,  42  Okl.  811. 

16  Const.  Okl.  art.  7,  8  1. 

17  Const.  Okl.  art.  7,  §  19. 
"  Rev.  Laws  1910,  §  4641. 

(8) 


Art.  1)  COURTS  AND  JUDGES  §    6 

neous.19  Where  a  series  of  decisions  of  a  court  of  last  resort  have 
been  acted  upon  as  the  proper  interpretation  of  the  law  for  a 
long  time,  they  will  not  be  interfered  with,  though  the  courts  would 
decide  otherwise  were  the  question  a  new  one.20  But  the  doctrine 
of  stare  decisis  does  not  preclude  a  departure  from  precedent  es- 
tablished by  a  series  of  decisions  clearly  erroneous,  unless  property 
complications  have  resulted  and  a  reversal  would  work  a  greater 
injury  and  injustice  than  would  ensue  by  following  the  rule.21 

The  Supreme  Court  will  give  full  consideration  to  authorities 
founded  upon  and  supported  by  living  principles,  but  will  not  recog- 
nize or  follow  precedents  which  have  outlived  their  usefulness; 
when  the  reason  for  a  rule  ceases,  the  court  will  not  enforce  such 
rule.22 

The  construction  of  a  statute  in  a  civil  proceeding  is  authority 
t 

«  Anderson  v.  State,  123  P.  442,  7  Okl.  Cr.  130. 

20  Inman  v.  Sherrill,  116  P.  426,  29  Okl.  100.   Judicial  decisions,  acted  on  as 
settled  rule  of  contract,  are  to  be  followed  on  the  principle  of  stare  decisis 
whether  right  or  wrong.     Lasiter  v.  Ferguson,  79  Okl.  200,  192  P.  197. 

21  Thurston  v.  Fritz,  138  P.  625,  91  Kan.  468,  50  L.  K.  A.  (N.  S.)  1167,  Ann. 
Gas.  1915D,  212. 

Rule  of  property. — A  decision  of  the  Supreme  Court  of  the  United  States 
following  the  decisions  of  the  Supreme  Court  of  Illinois  in  construing  "rules 
of  property"  in  Illinois,  is  not  applit;  'e  as  a  precedent  to  an  Oklahoma  con- 
tract, where  the  Oklahoma  decisions  are  in  conflict  with  those  of  Illinois. 
Hill  Oil  &  Gas  Co.  v.  White,  53  Okl.  748,  157  P.  710. 

In  an  action  to  recover  an  Indian  allotment,  testimony  of  lawyers  that 
the  rule  laid  down  by  the  United  States  Circuit  Court  of  Appeals  in  a  certain 
case  had  not  been  followed  generally  by  the  profession  and  trial  judges 
held  properly  excluded  on  objection  that  it  was  incompetent  and  immaterial. 
McDougal  v.  McKay,  142  P.  987,  43  Okl.  261,  judgment  affirmed  35  S.  Ct.  605, 
237  U.  S.  372,  59  L.  Ed.  1001. 

Though  an  act  authorizing  the  vacation  of  town  sites  might  be  held  uncon- 
stitutional if  the  question  were  a  new  one,  but  it  had  been  held  valid  for 
many  years  and  tracts  of  land  have  been  fenced  and  farmed  as  rural  lands, 
and  voting  places  have  been  determined  accordingly,  and  city  finances  and 
municipal  affairs  have  been  adjusted  for  years  on  the  supposition  that  the 
law  was  constitutional,  the  doctrine  of  stare  decisis,  based  on  the  necessity 
of  stability  in  the  interpretation  of  the  law,  applies,  and  the  former  decision 
will  not  be  disturbed.  Bull  v.  Kelley,  112  P.  133,  83  Kan.  597. 

22  Caples  v.  State,  104  P.  493,  3  Okl.  Cr.  72,  26  L.  R.  A.  (N.  S.)  1033. 
Though  decision  that  poll  tax  law  of  1911  did  not  apply  to  cities  of  first 

class  was  influenced  by  language  in  another  statute,  enacted  at  same  session, 
repeal  of  such  other  statute  will  not  change  interpretation  of  poll  tax  law- 
City  of  Topeka  v.  Wasson,  101  Kan.  824,  168  P.  902. 

(9) 


§§  g-7  COURTS  AND  COURT  OFFICERS  (Ch.  1 

for  a  like  construction  in  a  criminal  prosecution.23  It  is  the  settled 
policy  of  the  Supreme  Court  to  follow  the  construction  given  to 
criminal  statutes  by  the  Criminal  Court  of  Appeals.24 

The  Supreme  Court  of  the  state  took  and  possesses  any  and  all 
the  jurisdiction  of  the  Supreme  Court  of  the  territory,  except  as 
otherwise  provided,  and  has  the  same  power  and  right  to  re-ex- 
amine a  decision  of  that  court,  holding  a  territorial  statute  invalid, 
and  to  determine  whether  or  not  such  act  is  invalid,  and,  if  such 
decision  is  erroneous,  to  overrule  it.25 

Where  the  Legislature  has,  by  legislative  enactment,  prescribed 
rules  and  regulations  governing  contracts  and  agreements  relating 
to  real  estate,  or  any  interest  therein,  such  legislative  enactment 
must  govern,  any  decisions  of  other  states,  or  territories,  to  the 
contrary,  notwithstanding.26 

The  determination  as  to  whether  an  instruction,  abstractly  cor- 
rect, but  inapplicable  to  the  facts  of  the  case  was  prejudicial  will 
not  ordinarily  serve  as  a  precedent  for  any  other  case.27 

§  7.    Decisions  of  federal  courts 

Where  an  act  of  Congress  which  governs  a  contract  has  been 
construed  by  the  Supreme  Court  of  the  United  States,  the  deci- 
sion of  that  court  is  supreme,  and  state  courts  are  bound  by  it.28 

In  cases  arising  in  state  courts,  involving  rights  and  liabilities  of 
parties  to  an  interstate  railroad  shipment,  the  decisions  of  United 


28  State  v.  Coyle,  122  P.  243,  7  Okl.  Cr.  50,  rehearing  denied  130  P.  316,  8 
Okl.  Cr.  686. 

2*  State  v.  Russell,  124  P.  1092,  33  Okl.  141;  Ex  parte  Anderson,  124  P. 
980,  33  Okl.  216 ;  Ex  parte  Lightle,  124  P.  983,  33  Okl.  223 ;  Ex  parte  Rial, 
124  P.  983,  33  Okl.  224;  Ex  parte  Spurlock,  124  P.  983,  33  Okl.  225. 

25  State  v.  Chaney,  102  P.  133,  23  Okl.  788;  Frick  Co.  v.  Oats,  94  P.  682, 
20  Okl.  473.  \ 

»6  McCormick  v.  Bonfils,  60  P.  296,  9  Okl.  605. 

"Brownell  v.  Moorehead  (Okl.)  165  P.  408. 

28  Missouri,  K.  &  T.  R>.  Co.  v.  Walston,  133  P.  42,  37  Okl.  517.  The  strict 
construction  placed  by  the  federal  courts  upon  the  act  of  Congress  relative 
to  extradition  proceedings  between  states,  is  binding  on  state  courts.  Ex 
parte  Owen,  136  P.  197,  10  Okl.  Cr.  284,  Ann.  Cas.  1916A,  522. 

The  decisions  of  the  United  States  Supreme  Court  holding  valid  the  acts 
of  Congress  suspending  for  21  years  the  interstate  federal  laws  which  would 
permit  the  introduction  of  intoxicating  liquors  as  interstate  commerce  into 
the  Indian  territory  are  binding  upon  state  courts.  Huff  v.  State,  9  Okl.  Cr. 
675,  133  P.  265. 
(10) 


Art.  1)  COURTS  AND  JUDGES  §§  7~g 


States  Supreme  Court,  construing  and  applying  the  federal  act,  are 
controlling.29  , 

In  determining  questions  of  federal  cognizance,  the  state  Supreme 
Court  is  bound  by  rules  of  decisions  adjudicated  in  the  Supreme 
Court  of  the  United  States.80 

As  to  cases  pending  in  the  territorial  courts  in  Indian  Territory 
and  Oklahoma  Territory  at  the  time  of  the  erection  of  the  state,  de- 
cisions of  the  Supreme  Court  of  the  United  States  are  controlling.31 

§  8.    Common  law 

"The  common  law,  as  modified  by  constitutional  and  statutory 
law,  judicial  decisions  and  the  condition  and  wants  of  the  people, 
shall  remain  in  force  in  aid  of  the  general  statutes  of  Oklahoma ; 
but  the  rule  of  the  common  law,  that  statutes  in  derogation  thereof, 
shall  be  strictly  construed,  shall  not  be  applicable  to  any  general 
statute  of  Oklahoma;  but  all  such  statutes  shall  be  liberally  con- 
strued to  promote  their  object."  82  „ 

This  statute  precludes  the  following  of  decisions  based  on  the 
civil  law  as  governing  authority  in  this  jurisdiction.33  When  the 
people  came  to  Oklahoma  from  the  different  states  in  1889,  they 

29  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Bentley  (Okl.)  176  P.  250;    St.  Louis,  I. 
M.  &  S.  Ry.  Co.  v.  Patterson,  75  Okl.  204,  182  P.  701;    Atchison,  T.  &  S.  F. 
Ry.  Co.  v.  Cooper  (Okl.)  175  P.  539. 

The  several  sections  of  the  Act  Cong.  March  2,  1893,  c.  196,  27  Stat.  531 
(U.  S.  Comp.  St.  §§  8605-8612),  making  it  unlawful  for  railroads  engaged  in 
interstate  commerce  to  use  cars  not  equipped  with  specified  appliances,  are 
framed  upon  the  same  general  plan,  and,  notwithstanding  any  minor  differ- 
ences in  their  language,  a  declaration  by  the  Supreme  Court  of  the  United 
States  that  one  of  them  is  intended  to  impose  upon  the  railroad  the  absolute 
duty  of  keeping  in  good  repair  the  equipment  therein  required,  irrespective 
of  any  question  of  negligence,  determines  that  a  like  interpretation  is  to  be 
given  to  the  others.  Brinkmeier  v.  Missouri  Pac.  Ry.  Co.,  105  P.  221,  81 
Kan.  101,  judgment  affirmed  32  S.  Ct.  412,  224  U.  S.  268,  56  L.  Ed.  758. 

30  Miller  v.  State,  106  P.  810,  3  Okl.  Cr.  457. 

31  Fidelity  &  Deposit  Co.  of  Maryland  v.  Rankin,  124  P.  71,  33  Okl.  7 ;  State 
Mut.  Ins.  Co.  v.  Craig,  111  P.  325,  27  Okl.  90;    Missouri,  K.  &  T.  Ry,  Co. 
v.  Walker,  113  P.  907,  27  Okl.  849;    Stanford  v.  National  Drill  &  Mfg.  Co., 
114  P.  734,  28  Okl.  441;    Sullivan  v.  Mercantile  Town  Mut.  Ins.  Co.,  94  P. 
676,  20  Okl.  460,  129  Am.  St.  Rep.  761. 

32  Rev.  Laws  1910,  §  4642. 

33  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Groves,  93  P.  755,  20  Okl.  101,  22  L.  R.  A. 
(N.  S.)   802. 


§  8-11  COURTS  AND  COURT  OFFICERS  (Ch.  1 

brought  with  them  the  rules  of  the  common  law  as  recognized  by 
the  American  courts.84  * 

Words  not  defined  by  statute,  but  having  a  fixed  meaning  at 
common  law,  will  be  given  the  common-law  meaning.35 

§  9.     Obiter  dictum 

The  expression  of  a  view  on  a  point  not  necessary  to  the  decision 
is  "obiter  dictum,"  86  binding  upon  nobody.87 

§  10.     Law  of  the  case 

The  trial  court's  error  in  setting  aside  a  verdict  and  in  granting 
a  new  trial  where  it  has  jurisdiction  to  do  so,  unless  appealed  from 
or  otherwise  legally  reviewed,  becomes  final,  and  cannot  be  availed 
of  by  the  litigant  prejudicially  affected  in  a  subsequent  trial  of  same 
cause.88 

Where  plaintiff's  demurrer  to  paragraphs  of  the  answer  has  been 
overruled  his  motion  to  strike  the  same  paragraphs  for  the  same 
reasons  assigned  in  the  demurrer  is  properly  denied.39 

Where  the  Supreme  Court  renders  a  decision  which  is  afterwards 
overruled,  the  overruled  decision  is  the  law  of  the  case  in  which 
rendered.40  A  person  not  a  party  oV  privy  in  an  action  cannot  have 
a  vested  right  in  an  erroneous  decision  made  therein.41 

:§  11.     Statutes  and  construction 

Provision  has  been  recently  made  for  a  compilation  of  all  laws 
of  a  general  nature,  without  change  or  modification,  except  the 
.elimination   of  all  statutes  which   have  been   expressly  repealed. 
Each  section  shall  be  numbered  consecutively  with  the  correspond- 
ing number  of  the  Revised  Laws  of  Oklahoma  of  1910.42 

»*  Hoppe  Hardware  Co.  v.  Bain,  Sheriff,  et  al.,  21  Okl.  177,  95  P.  765,  17 
L.  R.  A.  (N.  S.)  310,  following  McKennon  v.  Winn,  1  Okl.  327,  33  P.  582,  22 
L.  R.  A.  501. 

so  Welty  v.  U.  S.,  14  Okl.  7,  76  P.  121. 

*«  Lansten  v.  Lansten,  55  Okl.  518,  154  P.  1182. 

87  State  v.  Crosby  Bros.  Mercantile  Co.,  103  Kan.  896,  176  P.  670. 

88  O'Neil  Engineering  Co.  v.  City  of  Lehigh,  75  Okl.  227,  182  P.  659. 
s»  Deerhig  v.  Meyers,  116  P.  793,  29  Okl.  232. 

«o  Stonebraker  v.  Ault,  59  Okl.  189,  158  P.  570. 

*i  Crigler  v.  Shepler,  101  P.  619,  79  Kan.  834,  23  L.  R.  A.  (N.  S.)  500. 

*2  Sess.  Laws  1921,  p.  158  (H.  B.  490),  §§  1-4. 

(12) 


Art.  1)  COURTS  AND  JUDGES  §    11 

In  the  construction  of  statutes,  the  intention  of  lawmakers,  when 
ascertained,  must  govern.48 

The  presumption  is  that  the  Legislature  does  not  intend  to  change 
existing  law  beyond  what  is  expressly  declared ;  and,  where  an  act 
creating  a  remedy  or  right  does  not  prescribe  the  procedure,  it  will 
be  assumed  that  the  general  procedure  was  intended,  unless  ex- 
pressly excluded.44 

In  construing  a  statute  containing  words  which  have  a  fixed 
meaning  at  common  law,  which  the  statute  nowhere  defines,  they 
will  be  given  the  same  meaning  they  have  at  common  law.45  The 
court  may  look  to  the  evils  and  mischiefs  to  be  remedied.48 

Where  there  is  a  doubt  as  to  the  legislative  intent  arising  from 
the  wording  of  the  statute,  the  court  should  follow  that  construc- 
tion which  will  lead  to  the  most  reasonable  conclusion  if  violence 
is  not  done  to  the  plain  meaning  of  the  words  of  the  statute.47 

Statutes  will  be  construed  in  the  most  beneficial  way  which  their 
language  will  permit  to  prevent  absurdity,  hardship,  or  ambiguity, 
and  to  favor  public  convenience.48 

When  a  strict  construction  of  a  particular  statute  would  defeat 
legislative  intent,  as  shown  by  other  enactments  on  the  same  sub- 


48  In  re  Cleveland's  Claim  (Okl.)  180  P.  852. 

Any  rule  of  statutory  construction  which  defeats  the  legislative  intent 
must  be  abandoned.  Cherokee  County  Pub.  Co.  v.  Cherokee  County,  48  Okl. 
722,  151  P.  187.  Where  the  language  of  an  act  conveys  a  definite  meaning 
involving  no  absurdity,  or  any  contradiction  of  other  parts  of  the  statute, 
the  apparent  meaning  must  be  accepted.  Falter  v.  Walker,  47  Okl.  527, 
149  P.  1111.  • 

44  State  v.  Hooker,  98  P.  964,  22  Okl.  712. 

45  Welty  v.  United  States,  76  P.  121,  14  Okl.  7. 

4£Blevins  v.  W.  A.  Graham  Co.  (Okl.)  182  P.  247;  Board  of  Com'rs  of 
Creek  County  v.  Alexander,  58  Okl.  128,  159  P.  311;  Blevins  v.  W.  A.  Gra- 
ham Co.  (Okl.)  182  P.  247. 

47  St.  Louis-San  Francisco  By.  Co.  v.  Caldwell,  75  Okl.  153,  182  P.  688. 

48McGannon  v.  State,  124  P.  1063,  33  Okl.  145,  Ann.  Cas.  1914B,  620. 

A  statute  must  be  given  the  meaning  apparent  on  its  face  where  the  words 
used  convey  a  distinct  meaning  which  involves  no  absurdity  or  contradic- 
tion. Leahy  v.  Indian  Territory  Illuminating  Oil  Co.,  39  Okl.  312,  135  P.  416. 

It  is  the  duty  of  the  courts  to  sustain  elections  when  free  from  fraud  or 
charge  of  improper  conduct,  where  it  can  be  done  by  a  liberal  construction 
of  the  laws  relating  thereto,  rather  than  defeat  them  by  requiring  a  rigid 
conformity  to  technical  statutory  directions  not  affecting  the  substantial 
rights  of  the  electors.  Town  of  Grove  v.  Haskell,  104  P.  56,  24  Okl.  707. 

(13) 


§§    11-13  COURTS  AND  COURT  OFFICERS  (Ch.  1 

ject  in  pursuance  of  a  general  purpose  in  accomplishing  a  particular 
result,  such  construction  should  not  be  adopted.49 

An  apparent  intent  of  an  amendment  will  be  carried  into  the 
original  act,  and  every  presumption  indulged  to  effectuate  that  in- 
tent.50 A  statute  which  is  inconsistent  with,  and  covers  the  entire 
subject  covered  by,  a  prior  statute,  but  which  does  not  expressly 
repeal  it,  may  be  construed  to  repeal  it  by  substitution.61 

§  12.    Erroneous  words  and  punctuation 

Where  the  plain  intent  can  be  gathered  from  the  context,  the 
court  may  substitute  or  supply  a  necessary  word.52 

Courts  are  not  bound  by  punctuation  or  grammatical  construc- 
tion, but  will  give  effect,  if  possible,  to  the  true  meaning  of  the 
statute.63  But  less  latitude  is  allowed  in  the  construction  of  a  crim- 
inal statute  than  in  the  case  of  a  civil  statute.54 

§  13.    Rule  of  ejusdem  generis 

Under  the  rule  of  ejusdem  generis,  where  general  words  follow 
the  enumeration  of  particular  classes,  the  general  words  will  be 

49  In  re  Cleveland's  Claim  (Okl.)  180  P.  852;  Groom  v.  Wright,  121  P. 
215.  30  Okl.  652. 

Statutes  are  not  to  be  taken  literally,  but  are  to  be  interpreted  so  as  to  give 
effect  to  the  purpose  of  the  law-making  power ;  and  to  the  legislative  intent 
is  to  be  ascribed  a  reasonable  and  not  a  technical  meaning.  Brown  v.  Woods. 
39  P.  473,  2  Okl.  601. 

60  Bonnett  v.  State,  47  Okl.  503,  150  P.  198. 

61  J.  W.  Ripey  &  Son  v.  Art  Wall  Paper  Mill,  112  P.  1119,  27  Okl.  600. 

02  Trustees',  Executors'  &  Securities  Ins.  Corp.  v.  Hooton,  53  Okl.  530,  157  P. 
293,  L.  R.  A.  1916E,  602. 

The  word  "and"  may  be  substituted  for  the  word  "or"  when  necessary  to 
make  a  statute  express  the  true  legislative  intent  as  gathered  from  the  con- 
text and  the  circumstances  attending  its  enactment.  State  v.  Hooked,  98  P. 
964,  22  Okl.  712. 

Where  words  have  been  erroneously  used  in  a  statute  and  the  context  af- 
fords the  means  of  correction,  the  proper  words  will  be  deemed  substituted. 
Schaffer  v.  Board  of  Com'rs  of  Muskogee  County,  124  P.  1069,  33  Okl.  288. 

53  Ex  parte  Hunnicutt,  123  P.  179,  7  Okl.  Cr.  213. 

The  intention  of  the  Legislature  governs  the  construction  of  a  statute,  and, 
if  that  requires  a  change  in  the  punctuation,  or  even  in  the  wording,  of  the 
statute,  such  change  must  be  made.  Stiles  v.  City  of  Guthrie,  41  P.  383,  3 
Okl.  26. 

5*  The  courts  have  no  power  to  add  to  the  plain  and  mandatory  provision  of 
the  statute  fixing  the  punishment  for  the  crime  of  perjury  (Rev.  Laws  1910, 
§  2219,  subd-  1),  though  the  word  "information"  is  clearly  omitted  therefrom 
through  an  oversight  of  the  committee  revising  the  Code  and  of  the  Legis- 
lature. Arnold  v.  State  (Okl.  Cr.  App.)  132  P.  1123. 

(14) 


Art.  1)  COURTS  AND  JUDGES  §§    13~14 

construed  as  applicable  only  to  things  of  the  same  general  char- 
acter or  class  as  those  enumerated,55  except  where  the  particular 
words  exhaust  the  class.58  This  rule  is  resorted  to  merely  as  an  aid 
in  the  construction  of  a  statute  and  has  no  application  where  it  clear- 
ly appears  that  the  Legislature  intended  the  general  words  to  go  be- 
yond the  class  specifically  designated.57 

Where  the  court  finds  an  expression  not  so  definite  in  its  import 
as  other  parts  of  the  statute,  if  upon  review  of  the  whole  the  real 
intention  can  be  collected  from  the  definite  expressions,  a  construc- 
tion should  be  adopted  that  will  give  effect  to  the  definite  expres- 
sions used  unless  it  contravenes  some  other  potent  provision  of 
law.58 

§  14. Statutes  construed  as  a  whole 

A  statute  must  be  construed  as  a  whole,  and -every  word  in  it 
made  effective  if  possible.59  Where  there  is  an  apparent  conflict  in 
different  portions  of  a  statute,  the  court  should  harmonize  them, 
if  practicable,  giving  that  construction  which  will  render  them 
operative.80 

55  Board  of  Com'rs  of  Kingfisher  County  v.  Grimes,  75  Okl.  219,  182  P.  897. 

66  Where  particular  words  of  a  statute  exhaust  the  class,  then  general 
words  must  be  given  a  meaning  beyond  the  class.  Kansas  City  Southern 
Ry.  Co.  v.  Wallace,  38  Okl.  233,  132  P.  908,  46  L.  R.  A.  (N.  S-)  112. 

57  Kansas  City  Southern  Ry.  Co.  v.  Tansey,  139  P.  267,  41  Okl.  543;    Kajj- 
sas  City  Southern  Ry.  Co.  v.  Wallace,  38  Okl.  233,  132  P.  908,  46  L.  R.  A. 
(N.  S.)   112. 

58  Ex  parte  Tyler,  102  P.  716,  2  Okl.  Cr.  455. 

5  9  Territory  v.  Clark,  35  P.  882,  2j  Okl.  82;  Bohart  v.  Anderson,  103  P. 
742,  24  Okl.  82,  20  Ann.  Cas.  142;  Bretz  v.  El  Reno  State  Bank  (Okl.)  177 
P.  362;  Matthews  v.  Rucker  (Okl.)  170  P.  492;  Board  of  Com'rs  of  Creek 
County  v.  Alexander,  58  Okl.  128,  159  P.  311 ;  Kansas  City  Southern  Ry.  Co. 
v.  Wallace,  38  Okl.  233,  132  P.  908,  46  L.  R.  A.  (N.  S.)  112;  Blevins  v.  W. 
A.  Graham  Co.  (Okl.)  182  P.  247;  Ex  parte  Hunnicutt,  123  P.  179,  7  Okl. 
Cr.  213 ;  Lee  v.  Roberts,  41  P.  595,  3  Okl.  106. 

60  Trapp  v.  Wells  Fargo  Express  Co.,  97  P.  1003,  22  Okl.  377. 

While  it  is  part  of  the  history  of  the  Statutes  of  1893  that  different  por- 
tions of  them  were  adopted  without  material  alteration  from  the  statutes  of 
different  states,  and  that  different  portions  are  not,  in  all  respects,  consist- 
ent with  each  other,  it  is  yet  the  duty  of  the  Supreme  Court  to  endeavor  to 
reconcile  them  wherever  it  is  possible  so  to  do,  in  order  that  the  legislative 
intent  may  be,  as  far  as  possible,  effective.  One  part  of  the  statute  will  not 
be  allowed  to  defeat  another,  if,  by  any  reasonable  construction,  the  two 
may  be  made  to  stand  together.  Durham  v.  Linderman,  64  P.  15,  10  Okl.  570. 

There  is  no  conflict  between  different  provisions  of  a  statute,  if  there  is 

(15) 


§  15  COURTS  AND  COURT  OFFICERS  (Ch.  1 

§  15.     Statutes  construed  together  or  in  the  light  of  each  other 

To  ascertain  the  legislative  intent  in  the  enactment  of.  a  statute, 
the  court  may  look  to  other  statutes  upon  the  same  or  related  sub- 
jects.61 

Statutes  are  in  pari  materia  which  relate  to  the  same  person  or 
thing  or  same  class  of  persons  or  things.  To  ascertain  the  legisla- 
tive intent  in  enacting  a  statute,  not  only  must  the  whole  statute 
and  every  part  of  it  be  considered,  but,  where  there  are  several 
statutes  in  pari  materia,  they  are  all,  whether  referred  to  or  not,  to 
be  taken  together,  and  one  part  construed  with  another  in  the  con- 
struction of  any  material  provision.62 
Acts  passed  at  same  legislative  session,  and  particularly  those 

a  reasonable  meaning  of  the  words  used,  considering  the  manner  of  their 
use,  which  will  bring  them  into  harmony.  Sackett  v.  Rose,  55  Okl.  398,  154 
P.  1177,  L.  R.  A.  1916D,  820. 

When  statutes  contain  two  distinct  provisions,  one  being  specific  with  pre- 
cise directions  to  do  a  particular  thing  for  a  specific  purpose,  and  the  other 
general,  prohibiting"  certain  acts  which  in  their  general  sense  include  the  par- 
ticular thing  authorized  by  the  specific  direction,  the  general  prohibition 
clause  does  not  control  the  specific  authority.  The  particular  direction  is 
construed  in  the  nature  oi|  an  exception.  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Haynes,  58  P.  738,  8  Okl.  576. 

61Blevins  v.  W.  A.  Graham  Co.  (Okl.)  182  P.  247. 

Where  different  legislative  enactments  have  reference  to  same  subject 
and  are  consistent  with  each  other,  they  should  be  construed  together  and 
harmonized,  if  possible,  so  that  effect  will  be  given  each  so  far  as  is  con- 
sistent} with  evident  intent  of  latest  enactment.  Thacker  v.  Witt,  64  Okl. 
169,  166  P.  713.  Subsequent  statutes  may  be  considered  as  aid  in  interpret- 
ing prior  legislation  on  same  subject.  Id. 

Subsequent  legislative  enactments  may  be  considered  as  aid  in  interpreta- 
tion of  prior  legislation  on  same  subject.  Board  -of  Com'rs  of  Creek  County 
v.  Alexander,  58  Okl.  128,  159  P.  311.  When  strict  interpretation  of  partic- 
ular statute  would  defeat  intent  as  shown  by  other  legislation  enacted  ac- 
cording to  general  purpose  in  accomplishing  particular  result,  such  construc- 
tion should  not  be  adopted.  Id. 

i62  De  Graffenreid  v.  Iowa  Land  &  Trust  Co.,  95  P.  624,  20  Okl.  687. 

The  laws  regulating  the  issue  and  registration  of  warrants,  and  for  issue 
and  sale  of  bonds  for  the  purpose  of  realizing  a  fund  out  of  which  to  pay 
such  warrants,  are  pari  materia,  and  must  be  construed  with  reference  to 
each  other.  Diggs  v.  Lobitz,  43  P.  1009,  4  Okl.  232. 

When  two  statutes  covering  the  same  matter  are  not  wholly  irreconcilable, 
effect  should  be  given  to  both.  Carpenter  v.  Russell,  73  P.  930,  13  Okl.  277. 
Where  two  statutes  cover  the  same  matter,  and  one  part  of  them  is  suscep- 
tible of  two  constructions,  and  language  of  another  part  is  clear  and  is  con- 
sistent with  one  of  such  constructions  and  opposed  to  the  other,  the  con- 
struction harmonizing  all  sections  must  be  adopted.  Town  of  Comanche  v. 
Ferguson  (Okl.)  169  P.  1075. 

(16) 


Art.  1)  COURTS  AND  JUDGES  §    15 

passed  at  nearly  the  same  time  relating  to  similar  subject,  are  pre- 
sumed to  be  actuated  by  the  same  policy,  and  should  be  construed 
each  in  the  light  of  the  other.88 

Statutory  provisions,  which  have  been  repealed  or  superseded, 
may  be  looked  to  in  construction  of  amendatory  acts  in  pari  ma- 
teria.64 

The  state  statutes  are  to  be  construed  in  connection  with  the 
Constitution  of  the  United  States  and  acts  of  Congress  adopted  in 
pursuance  thereof.65 

Where  there  are  two  statutory  provisions,  one  of  which  is  special 
and  clearly  includes  the  matter  in  controversy,  and  prescribes  dif- 
ferent rules  and  procedure  from  those  in  the  general  statute,  the 
special  statute,  and  not  the  general  statute,  applies.66 

63  State  v.  Prairie  Oil  &  Gas  Co.,  64  Okl.  267,  167  P.  756. 

The  rule  that  statutes  relating  to  the  same  subject-matter  should  be  con- 
strued together,  and  effect  given  to  each,  ought  specially  to  be  applied  where 
the  statutes  were  enacted  at  the  same  session  of  the  Legislature.  Hess  v. 
Trigg,  57  P.  159,  8  Okl.  286. 

Acts  passed  the  same  day,  separately*  or  at  the  same  session,  are  to  be 
construed  together;  the  presumption  being  that  they  are  all  intended  to 
operate,  and  may  not  be  altered  by  construction,  when  the  words  may  have 
their  proper  operation  without  it.  Trapp  v-  Wells  Fargo  Express  Co.,  97  P. 
1003,  22  Okl.  377. 

Act  May  1,  1913  (Laws  1913,  c.  161),  consolidating  certain  offices  and  pro- 
viding for  deputies,  and  Act  May  19,  1913  (Laws  1913,  c.  212),  fixing  the  sal- 
ary of  county  officers  in  counties  having  a  population  of  over  80,000,  being 
passed  at  the  same  session  of  the  Legislature,  should  be  construed  together 
as  one  act,  so  that  all  parts  of  the  act  may  stand.  Ratliff  v.  Fleener,  143  P. 
1051,  43  Okl.  652. 

Sess.  Laws  1913,  c.  161,  consolidating  the  offices  of  register  of  deeds  and 
county  clerk,  should  be  construed,  in  determining  its  constitutionality,  in 
pari  materia  with  Sess.  Laws  1913,  c.  212,  as  amended  by  Act  Feb.  1,  1915 
(Laws  1915,  c.  6),  and  as  if  it  had  read  from  the  beginning  as  it  does  with 
the  amendatory  act  incorporated  in  it.  Bonnett  v.  State,  47/  Okl.  503,  150 
P.  198. 

64  Searcy  v.  State,  64  Okl.  257,  167  P.  476. 

65  Overton  v.  State,  123  P.  175,  7  Okl.  Cr.  203,  denying  rehearing  114  P. 
1132,  7  Okl.  Cr.  203. 

6'6  Gardner  v.  School  Dist.  No.  87,  Kay  County,  126  P.  1018,  34  Okl.  716. 

A  general  act  is  not  to  be  construed  as  applying  to  cases  covered  by  a 
prior  special  act  on  the  same  subject.  Carpenter  v.  Russell,  73  P.  930,  13 
Okl.  277. 

The  courts  in  construing  a  general  statute  should  interpret  it  so  as  not  to 
conflict  with  an  earlier  special  statute  which  could  stand  independently  for  a 
useful  purpose.  Incorporated  Town  of  Valliant  v.  Mills,  116  P.  190,  28  Okl. 
811. 

HON.PL.&  PBAC.— 2  (17) 


§§    15-18  COURTS  AND  COURT  OFFICERS  (Ch.  1 

A  joint  resolution,  signed  by  the  Governor,  but  not  having  the 
force  of  law,  declaring  the  purpose  of  a  former  act,  may  be  con- 
sidered as  an  aid  in  construing  such  former  act.6T 

§  16.    Administrative  construction 

The  construction  placed  on  statutes  or  constitutional  provisions 
by  officers  in  the  discharge  of  their  duties,  and  which  has  been  long 
acquiesced  in,  is  to  be  considered  in  the  interpretation  of  the  same.68 

§  17.    Provisos  or  exceptions 

The  proviso  of  a  statute  is  generally  a  clause  containing  a  condi- 
tion that  a  certain  thing  shall  or  shall  not  be  done  in  order  that 
something  in  another  clause  shall  take  effect.69  Its  office  being  to 
restrain  or  qualify  some  preceding  matter,  it  should  be  confined  to 
what  precedes  it,  unless  it  clearly  appears  to  have  been  intended 
to  apply  to  some  other  matter,  and  is  to  be  construed  in  connection 
with  the  section  of  which  it  forms  part.70  It  relates  to  the  para- 
graph or  distinct  portion  of  the  enactment  which  immediately  pre- 
cedes it,  unless  the  contrary  intention  is  clearly  apparent.71 

§  18.    Statute  adopted  from  another  state 

Where  a  statute  is  taken  from  another  state  after  its  construction 
by  the  highest  court  of  that  state,  it  is  presumed  that  it  was  adopted 
as  so  construed ; 72  but,  to  sustain  the  presumption,  such  construc- 

67  Board  of  Com'rs  of  Creek  County  v.  Alexander,  58  Okl.  128,  159  P.  311. 

»8  League  v.  Town  of  Taloga,  129  P.  702,  35  Okl.  277. 

The  construction  placed  on. statutes  by  officers  charged  with  the  enforce- 
ment thereof  at  or  near  the  time  of  their  enactment,  and  which  has  long 
been  acquiesced  in,  is  a  just  medium  for  their  judicial  interpretation.  Hun- 
ter v.  State,  49  Okl.  672,  154  P.  545 ;  Foote  v.  Town  of  Watonga,  130  P.  597, 
37  Okl.  43. 

A  ruling  of  the  Commissioner  of  the  General  Land  Office  that  the  date  of 
application  for  enrollment  of  a  citizen  of  the  Five  Civilized  Tribes  should 
be  held  to  be  the  anniversary  of  the  birth  is  not  a  construction  of  Act  Cong. 
May  27,  1908,  §  3,  relating  to  conclusiveness  of  enrollment  as  to  age  of  In- 
dian. Heffner  v.  Harmon,  60  Okl.  153,  159  P.  650. 

69  Trimmer  v.  State,  141  P.  784,  43  Okl.  152. 

70  Searcy  v.  State,  64  Okl.  257,  167  P.  476. 

71  Leader  Printing  Co.  v.  Nichols,  50  P.  1001,  6  Okl.  302. 

72  Conwill  v.  Eldridge   (Okl.)   177  P.  79;    Chisholm  v.  Weisse,  39  P.  467. 
2  Okl.  611 ;    St.  Louis  &  S.  F.  R.  Co.  v.  Bruner,  52  Okl.  349,  152  P.  1103. 

Where  a  statute  is  adopted  from  another  state,  decisions  of  the  Supreme 
Court  of  such  state,  construing  the  statute  prior  to  its  adoption,  are  con- 
trolling. Amsden  v.  Johnson  (Okl.)  158  P.  1148. 

It  will  be  presumed  that  Congress,  in  adopting  statutes  of  Arkansas  for 

(18) 


Art.  1)  COURTS  AND  JUDGES  §    18 

tion  must  have  been  placed  thereon  by  the  highest  judicial  tribu- 
nal authorized  to  pass  upon  the  question,  and  must  have  been  so 
long  established  as  to  have  been  known,  or  so  long  that  it  reason- 
ably might  have  been  known,  to  the  legislature  adopting  it.78  It 
follows  that  the  decisions  of  the  Supreme  Court  of  Kansas,  con- 
struing the  Code  provisions  of  that  state  before  their  adoption  in 
Oklahoma,  are  ordinarily  binding  here.7*  This  means  that  these 
decisions  are  as  conclusive  on  the  Oklahoma  Supreme  Court  as  one 
of  their  own  former  decisions  would  be,  not  that  they  cannot  de- 
cide contrary  to  it  under  the  same  circumstances  that  would  justify 
the  revocation  of  one  of  their  own  prior  decisions.75  The  Nebras- 
ka Code  originally  was  practically  identical  with  the  Kansas  Code, 
and  is  now  very  similar  to  both  the  Kansas  and  Oklahoma  Codes. 
While  the  Nebraska  decisions  are  not  binding  in  Oklahoma,  yet  so 

the  Indian  Territory,  adopted  the  construction  previously  placed  on  them 
by  the  Supreme  Court  of  Arkansas.  Steele  v.  Kelley,  122  P.  934,  32  Okl.  547 ; 
National  Live  Stocks  Commission  Co.  v.  Taliaferro,  93  P.  983,  20  Okl.  177; 
State  v.  Caruthers,  98  P.  474,  1  Okl.  Cr.  428;  Glenn  v.  City  of  Ardmore, 
122  P.  658,  32  Okl.  414. 

The  Supreme  Court  will  follow  the  principles  of  construction  and  inter- 
pretation of  the  Code  of  Civil  Procedure  which  are  applied  by  the  Supreme 
Court  of  Kansas,  since  it  was  adopted  from  that  state.  United  States  v. 
Choctaw,  O.  *  G.  R.  Co.,  41  P.  729,  3  Okl.  404. 

The  Code  of  Civil  Procedure  (St.  1890)  having  been  adopted  from  Indiana, 
and  the  Supreme  Court  of  that  state  having,  prior  to  such  adoption,  held 
that  the  provision  of  the  Code  relating  to  the  trial  of  rights  of  property  was 
applicable  only  to  proceedings)  before  a  justice  of  the  peace,  the  Supreme 
Court  of  Oklahoma  is  bound  by  that  construction.  Hixon  v.  Hubbell,  44  P 
222,  4  Okl.  224. 

Laws  1907-08,  c.  10,  art.  1,  is  not  affected  by  construction  placed  on  a  simi- 
lar law  by  the  Supreme  Court  of  Missouri,  in  the  absence  of  a  showing  that 
such  act  was  borrowed  from  Missouri  after  the  law  of  that  state  had  been 
construed.  Wheeler  v.  City  of  Muskogee,  51  OkL  48,  151  P.  635. 

73  Smith  v.  Baker,  49  P.  61,  5  Okl.  326. 

The  mining  act  of  Pennsylvania  though  similar  to  the  Kansas  statute  (Gen. 
St.  1909,  §§  4975-5059)  enacted  to  protect  the  health  and  safety  of  mine 
workers,  was  not  adopted  as  the  law  of  Kansas,  and  hence  the  Pennsylvania 
Supreme  Court  decisions  interpreting  it  are  persuasive  only.  Burgin  v.  Mis- 
souri, K.  &  T.  Ry.  Co.,  133  P.  560,  90  Kan.  194. 

74Mulhall  v.  Mulhall,  3  Okl.  308,  41  P.  109;  Grimes  v.  Cullison,  3  Okl.  270, 
41  P.  355 ;  Oklahoma  City  v.  Welsh,  3  Okl.  295,  41  P.  598 ;  Kilgore  v.  Yarnell 
et  al.,  24  Okl.  525,  103  P.  698.  Following  Farmers'  State  Bank  of  Arkansas 
City  v.  Stephenson,  23  Okl.  695,  102  P.  992 ;  Brown  et  al.  v.  Massey,  19  Okl. 
482,  92  P.  246;  Brunson  v.  Merrill,  17  Okl.  44,  86  P.  431. 

7°  Greenville  Nat.  Bank  v.  Evans-Snyder-Buel  Co.,  9  Okl.  353,  60  P.  249. 

(19) 


§§    18-18  COURTS  AND  COURT  OFFICERS  (Ch.  1 

far  as  they  are  consistent  with  logic  and  reason  they  will  be  fol- 
lowed.76 

The  Oklahoma  Supreme  Court  is  not  bound  by  a  subsequent 
construction  or  by  a  decision  of  an  intermediate  court  of  appeals  of 
the  other  state.77 

The  rule  that  the  Legislature  in  adopting  a  statute  of  another 
state  is  presumed  to  have  adopted  the  construction  placed  thereon 
by  the  highest  court  of  such  state  does  not  apply  where  such  con- 
struction is  contrary  to  the  Constitution  or  well-defined  legislative 
policy  of  the  adopting  state,  or  the  adopted  statute  exists  in  many 
states  and  the  decided  weight  of  authority  is  against  such  construc- 
tion.78 

Where  a  statute  is  not  peculiar  to  the  state  from  which  it  was 
adopted,  but  other  states  have  substantially  the  same  statute  "which 
their  courts  have  construed  differently,  the  construction  of  the 
state  from  which  it  was  adopted,  being  opposed  to  the  weight  of 
authority,  will  not  be  followed.79 

§  19.    Adjournment  by  sheriff 

"If  the  judge  of  a  court  fail  to  attend  at  the  time  and  place  ap- 
pointed for  holding  his  court,  the  sheriff  shall  have  power  to  adjourn 
the  court,  from  day  to  day,  until  the  regular  or  assigned  judge  at- 

7«Allsman  v.  Oklahoma  City,  21  Okl.  142,  95  P.  468,  17  Ann.  Gas.  184,  16 
L.  R.  A.  (N.  S.)  511,  note;  Swan  v.  Wilderson,  10  Okl.  547,  62  P.  422. 

77  Given  v.  Owen  (Okl.)   175  P.  345. 

A  decision  of  the  Supreme  Court  of  Arkansas,  rendered  since  the  laws  of 
that  state  were  extended  over  the  Indian  Territory,  is  not  even  persuasive 
when  in  conflict  with  the  settled  law  of  Oklahoma.  Marx  v.  Hefner,  46  Okl. 
453,  149  P.  207,  Ann.  Gas.  1917B,  656.  Kansas  decisions,  construing  a  stat- 
\ite  subsequent  to  its  adoption  in  Oklahoma,  have  no  binding  force  here. 
Richardson  et  al.  v.  Penny,  9  Okl.  655,  60  P.  501. 

The  construction  placed  upon  a  statute  of  a  state  by  the  court  of  last  re- 
sort of  that  state  at  the  time  of  its  adoption  by  another  state  is  controlling 
in  construing  the  statute  in  the  latter  state,  and  not  subsequent  construc- 
tions. Barnes  v.  Lynch,  59  P.  995,  9  Okl.  11,  156. 

78Hutchinson  v.  Krueger,  124  P.  591,  34  Okl.  23,  41  L.  R.  A.  (N.  S.)  315, 
Ann.  Gas.  1914C,  98. 

A  statute  adopted  from  "another  state  does  not  bring  with  it  the  construc- 
tion placed  upon  it  by  the  highest  court  of  that  state,  where  such  construction 
is  contrary  to  the  Constitution  or  well-defined  policy  of  the  adopting  state 
or  is  contrary  to  the  decided  weight  of  authority  of  other  states.  Western 
Terra  Gotta  Co.  v.  Board  of  Education  of  City  of  Shawnee,  136  P.  595,  39 

79  Ex  parte  Bowes,  127  P.  20,  8  Okl.  Cr.  201. 
(20) 


Art  1)  COURTS  AND  JUDGES  §§   20~23 

tend,  or  a  judge  pro  tempore  be  selected;  but  if  the  judge  be 
not  present  in  his  court,  nor  a  judge  be  assigned  or  a  judge  pro 
tempore  be  selected,  within  two  days  after  the  first  day  of  the 
term,  then  the  court  shall  stand  adjourned  for  the  term.  The  sheriff 
shall  exercise  the  powers  and  duties  conferred  and  imposed  upon 
him  by  the  statutes  of  this  State,  and  by  the  common  law."  80 

§  20.     Publications 

"All  publications  and  notices  required  by  law  to  be  published  in 
newspapers  in  this  state,  if  published  in  newspapers  having  one  side 
of  the  paper  printed  away  from  the  office  of  publication,  known  as 
patent  outsides  or  insides,  shall  have  the  same  force  and  effect  as 
though  the  same  were  published  in  newspapers  printed  wholly  and 
published  in  the  county  where  such  publication  shall  be  made, 
if  one  side  of  the  paper  is  printed  in  said  county  where  said  notices 
are  required  to  be  published."  81 

§  21.    Affirmation 

"Whenever  an  oath  is  required  by  this  Code,  the  affirmation  of  a 
person,  conscientiously  scrupulous  of  taking  an  oath,  shall  have  the 
same  effect."  82 

§  22.     Computation  of  time 

"The  time  within  which  an  act  is  to  be  done  shall  be  computed  by 
excluding  the  first  day,  and  including  the  last;  if  the  last  day  be 
Sunday,  it  shall  be  excluded."  83 

§  23.     Surety — Justification 

"A  ministerial  officer,  whose  duty  it  is  to  take  security  in  any 
undertaking  provided  for  by  this  Code  or  by  other  statutes,  shall 
require  the  person  offered  as  surety  to  make  an  affidavit  of  his 
qualifications,  which  affidavit  may  be  made  before  such  officer,  and 
shall  be  indorsed  upon  or  attached  to  the  undertaking.  The  taking 
of  such  an  affidavit  shall  not  exempt  the  officer  from  any  liability  to 
which  he  might  otherwise  be  subject  for  taking  insufficient  se- 
curity." 84 

Okl.  716.  The  mechanics'  lien  law,  though  adopted  from  Kansas,  will  not  be 
given  the  construction  placed  upon  it  by  the  Supreme  Court  of  Kansas  so  as 
to  permit  liens  on  public  property.  Id. 

80  Rev.  Laws  1910,  §  5338.  83  Rev.  Laws  1910,  §  5341. 

«  Rev.  Laws  1910,  §  5348.  84  Rev.  Laws  1910,  §  5342. 

82  Rev.  Laws  1910,  §  5340. 

(21) 


§§   24-28  COURTS  AND  COURT  OFFICERS  (Ch.  1 

§  24.    Qualifications 

"The  surety  in  every  undertaking  provided  for  by  this  Code  or 
other  statutes,  unless  a  surety  company,  must  be  a  resident  of  this 
state  and  worth  double  the  sum  to  be  secured,  over  and  above  all 
exemptions,  debts  and  liabilities.  Where  there  are  two  or  more 
sureties  in  the  same  undertaking,  they  must,  in  the  aggregate,  have 
the  qualifications  prescribed  in  this  section."  85 

§  25.    Real  estate  mortgage  as  bond 

"In  every  instance  in  this  state  where  bond,  indemnity  or  guaran- 
ty is  required,  a  first  mortgage  upon  improved  real  estate  within  this 
state  shall  be  accepted :  Provided,  that  the  amount  of  such  bond, 
guaranty  or  indemnity  shall  not  exceed  fifty  per  cent,  of  the  reason- 
able valuation  of  such  improved  real  estate,  exclusive  of  all  build- 
ings thereon;  provided,  further,  that  where  the  amount  of  such 
bond,  guaranty  or  indemnity  shall  exceed  fifty  per  cent,  of  the  rea- 
sonable valuation  of  such  improved  real  estate,  exclusive  of  all 
buildings,  then  such  first  mortgage  shall  be  accepted  to  the  extent 
of  such  fifty  per  cent,  valuation."  8e 

§  26.    Valuation  of  real  estate 

"The  officer,  whose  duty  it  is  to  accept  and  approve  such  bond, 
guaranty  or  indemnity,  shall  require  the  affidavits  of  two  freehold- 
ers versed  in  land  values  in  the  community  where  such  real  estate 
is  located  to  the  value  of  such  real  estate.  Said  officer  shall  have 
the  authority  to  administer  the  oaths  and  take  said  affidavits."  8T 

§  27.    False  valuation — Penalty 

"Any  person  willfully  making  a  false  affidavit  as  to  the  value  of 
.any  such  real  estate  shall  be  guilty  of  perjury  and  punished  accord- 
ingly. Any  officer  administering  or  accepting  such  affidavit  know- 
ing it  to  be  false,  shall  be  guilty  of  subornation  of  perjury  and  pun- 
ished accordingly."  88 

§  28.     Action  on  bond 

"When  an  officer,  executor  or  administrator  within  this  state,  by 
misconduct  or  neglect  of  duty,  forfeits  his  bond  or  renders  his  sure- 
ties liable,  any  person  injured  thereby,  or  who  is,  by  law,  entitled  to 

80  Rev.  Laws  1910,  §  5343.  «?  Rev-  1>aws  1910    §  5345 

ie  Rev.  Laws  1910,  g  5344.  ««  Rev.  Laws  1910,  §  5346. 

(22) 


Art.1) 


COURTS  AND  JUDGES 


§§  29-31 


the  benefit  of  the  security,  may  bring  an  action  thereon  in  his 
own  name,  against  the  officer,  executor  or  administrator  and  his 
sureties,  to  recover  the  amount  to  which  he  may  be  entitled  by  rea- 
son of  the  delinquency.  The  action  may  be  instituted  and  proceed- 
ed in  on  a  certified  copy  of  the  bond,  which  copy  shall  be  furnish- 
ed by  the  person  holding  the  original  thereof."  89 

§  29.     Several  actions  on  security 

"A  judgment  in  favor  of  a  party  for  one  delinquency  does  not 
preclude  the  same  or  another  party  from  an  action  on  the  same 
security  for  another  delinquency."  00 

§  30.     Submission  of  controversy 

"Parties  to  a  question,  which  might  be  the  subject  of  a  civil  ac- 
tion, may  without  action  agree  upon  a  case  containing  the  facts  up- 
on which  the  controversy  depends,  and  present  a  submission  of  the 
same  to  any  court,  which  would  have  jurisdiction  if  an  action  had 
been  brought.  But  it  must  appear,  by  affidavit,  that  the  controver- 
sy is  real,  and  the  proceedings  in  good  faith  to  determine  the  rights 
of  the  parties.  The  court  shall  thereupon  hear  and  determine  the 
case,  and  render  judgment  as  if  an  action  were  pending."  81 

"The  case,  the  submission,  and  a  copy  of  the  judgment,  shall 
constitute  the  record."  92 

"The  judgment  shall  be  with  costs,  may  be  enforced,  and  shall 
be  subject  to  reversal  in  the  same  manner  as  if  it  had  been  rendered 
in  an  action,  unless  otherwise  provided  in  the  submission."  8S 

§  31.     Impeachment  and  removal  from  office 

Any  elective  state  officer  may  be  impeached  for  cause.9*  All 
elective  officers  not  liable  to  impeachment  shall  be  subject  to  re- 
moval from  office.95 

"When  sitting  as  a  court  of  impeachment,  the  Senate  shall  be 
presided  over  by  the  Chief  Justice,  or  if  he  is  absent  or  disqualified, 
then  one  of  the  Associate  Justices  of  the  Supreme  Court,  to  be 
selected  by  it,  except  in  cases  where  all  the  members  of  said  court 
are  absent  or  disqualified,  or  in  cases  of  impeachment  of  any  Jus- 


89  Rev.  Laws  1910,  §  5349. 
80  Rev.  Laws  1910,  §  5350. 
91  Rev.  Laws  1910,  §  5303. 
82  Rev.  Laws  1910,  §  5304. 


»SRev.  Laws  1910,  §  5305. 

84  Const.  Okl.  art.  8,   §  1. 

85  Const.  Okl.  art.  8,  §  2. 


(23) 


§§    31-33  COURTS  AND  COURT  OFFICERS  (Ql.  1 

tice  of  the  Supreme  Court,  then  the  Senate  shall  elect  one  of  its  own 
members  as  a  presiding  officer  for  such  purposes.  The  House  of 
Representatives  shall  present  all  impeachments."  ' 

"When  the  Senate  is  sitting  as  a  court  of  impeachment,  the  Sena- 
tors shall  be  on  oath,  or  affirmation,  impartially  to  try  the  party 
impeached,  and  no  person  shall  be  convicted  without  the  concur- 
rence of  two-thirds  of  the  Senators  present."  97 

"Judgment  of  impeachment  shall  not  extend  beyond  removal 
from  office,  but  this  shall  not  prevent  punishment  of  any  such 
officer  on  charges  growing  out  of  the  same  matter  by  the  courts  of 
the  state."98 

"The  Legislature  shall  pass  such  laws  as  are  necessary  for  carry- 
ing into  effect  the  provisions  of  this  article."  99 


DIVISION  II.  —  JUDGES  IN 

§  32.    As  public  officer 

The.  judges  of  the  district  courts  *  and  of  the  superior  courts  are 
state  officers.2 

An  attorney  at  law,  when  elevated  to  the  bench  of  any  court 
of  record,  is  prohibited  from  practicing  law  in  any  state  court,  so 
long  as  he  occupies  such  position.3  He  is  only  permitted  to  finish 
business  on  hand  in  the  United  States  courts  at  the  time  of  his 
elevation  to  the  bench.* 

§  33.    Judge  pro  tempore 

Where  a  county  judge  certifies  his  disqualification  in  a  particular 
case  or  proceeding,  a  judge  pro  tempore  must  be  elected.5  The  rec- 
ord must  show  that  the  judge  of  the  trial  court  was  disqualified, 
that  such  special  judge  was  an  attorney  duly  agreed  on  or  elected, 
and  that  he  took  the  required  oath.6  The  pro  tempore  county  judge 

*•  Const.  Okl.  art.  8,  §  3. 

97  Const.  Okl.  art.  8,  g  4. 

98  Const.  Okl.  art.  8,  §  5. 

99  Const.  Okl.  art  8,  §  6. 

1  Grayson  v.  Ferryman,  25  Okl.  339,  106  P.  954. 

2  State  v.  Breckinridge,  34  Okl.  649,  126  Pac.  806. 

3  Lilly  v.  State,  123  P.  575,  7  Okl.  Cr.  284,  Ann.  Gas.  1914B,  443. 
«Id. 

6  State  v.  Taylor  (Okl.)   171  P.  452;    Rev.  Laws  1910,  §  5814. 
6  Apple  v.  Ellis,  50  Okl.  80,  150  P.  1057. 

(24) 


Art.  1)  COURTS  AND  JUDGES  §§  33~35 

in  a  given  case  is,  for  the  time  being  and  for  the  purpose  of  that 
case,  a  "county  officer."  7 

A  disqualified  judge  should  carefully  abstain  from  taking  any 
part  in  the  selection  of  the  person  who  is  to  preside  in  his  place  in 
the  trial  of  a  cause  in  which  he  has  been  disqualified.8  His  author- 
ity ceases  with  a  lapsing  of  the  term  at  which  he  was  selected, 
unless  the  case  is  finally  disposed  of  at  such  term,  and  in  that  case 
ceases  with  a  final  disposition  of  the  cause.9 

Prior  to  1909  no  provision  having  been  made  by  law  whereby  a 
judge  pro  tempore  could  be  selected  in  the  event  of  the  disqualifica- 
tion of  the  regular  judge,  a  special  judge  elected  by  the  members 
of  the  bar  present,  which  election  was  opposed  by  one  of  the 
parties  to  the  action  was  not  a  judge  either  de  jure  or  de  facto,  and 
a  trial  had  before  him  was  a  nullity.10 

All  orders,  judgments,  and  decrees  made  by  a  judge  pro  tempore 
not  lawfully  selected  are  a  nullity.11 

§  34.    Waiver  of  objections 

Where  a  special  judge  is  chosen  to  sit  in  a  particular  case,  which 
is  not  finally  determined  at  the  term,  and  he  presides  at  a  subse- 
quent term  at  which  his  authority  is  recognized  by  the  parties,  they 
thereby  waive  any  objection  that  he  was  not  re-elected.12  And 
where  counsel  for  defendants  fail  to  challenge  the  votes  of  attor- 
neys for  plaintiff  on  the  election  of  a  judge  pro  tempore,  they  can- 
not make  such  objection  after  the  election  of  one  opposed  by  them.13 

§  35.    Powers  of  special  judges 

A  special  judge,  selected  by  agreement,  has  no  jurisdiction  over 
any  cause  other  than  the  one  in  which  he  is  selected.1* 

7  Board  of  Com'rs  of  Oklahoma  County  v.  Twyford,  39  Okl.  230,  134  P.  968. 
s  Kelly  v.  Ferguson,  114  P.  631,  5  Okl.  Or.  316;    Id.,  115  P.  284,  5  Okl.  Cr. 

700. 

8  Dodd  v.  State,  115  P.  632,  5  Okl.  Cr.  513.    An  order  for  a  change  of  venue 
by  a  judge  pro  tempore  not  lawfully  selected,  though  on  petition  of  accused, 
confers  no  authority  on  a  duly  qualified  judge  in  the  county  to  which  the 
change  is  ordered.    Id. 

10Stanclift  v.  Swingle,  120  P.  252,  30  Okl.  544;  Cowart  v.  State,  111  P. 
672,  4  Okl.  Cr.  122 ;  Williams  v.  State,  113  P.  1060,  5  Okl.  Or.  144. 

11  Dodd  v.  State,  115  P.  632,  5  Okl.  Cr.  513. 

12  Ellington  v.  State,  123  P.  186,  7  Okl.  Cr.  252. 
is  Deninger  v.  Gossom,  46  Okl.  596,  149  P.  220. 
"  Hirsh  v.  Twyford,  139  P.  313,  40  Okl.  220. 

(25) 


§§    35-36  COURTS  AND  COURT  OFFICERS  (Ch.  1 

Where  an  application  for  change  of  judge  is  granted,  and  the 
clerk  of  the  district  court  is  ordered  to  notify  the  clerk  of  the  Su- 
preme Court  of  such  change,  and  on  the  same  day  an  order  at. 
chambers  is  made  by  the  chief  justice  assigning  another  judge  to- 
hold  the  district  court  and  determine  all  cases  that  may  come  before 
him  during  the  absence  of  the  regular  judge,  the  judge  so  assigned 
has  jurisdiction  to  try  any  case  or  matter  which  may  come  before 
him  while  acting  under  such  order.15 

Where  a  district  judge  is  assigned  by  the  Chief  Justice  of  the 
Supreme  Court  to  hold  court  in  another  district  than  his  own,  such 
judge  while  so  acting  is  a  judge  pro  tempore  of  the  district  in  which 
he  is  sitting.16  That  the  regular  judge  is  holding  court  in  the  same 
district  and  at  the  same  time  that  a  special  judge  is  trying  a  crimi- 
nal case  therein  does  not  affect  the  latter's  jurisdiction.17 

Where  the  regularly  elected  judge  is  disqualified  and  a  special 
judge  is  selected,  his  authority  ceases  at  the  end  of  the  term;  and 
if  the  case  is  continued  to  another  term  the  special  judge  has  no 
authority  to  preside  at  the  trial  of  the  second  term,  unless  again 
lawfully  selected.18 

A  district  judge  has  no  right  or  power  to  perform  judicial  acts 
affecting  cases  pending  in  any  other  district,  unless  authorized  to 
do  so  by  constitutional  or  statutory  provision.19 

A  special  county  judge,  appointed  to  try  the  issues  in  a  proceed- 
ing to  probate  a  will,  is  without  jurisdiction  to  appoint  an  adminis- 
trator of  the  estate  or  to  make  any  other  order  as  to  the  adminis- 
tration proceeding.20 

§  36.    Liabilities 

An  action  will  not  lie  against  a  judicial  officer  for  a  judicial  act, 
where  there  is  jurisdiction  of  the  person  and  subject-matter,  though 
it  was  done  maliciously,  or  even  corruptly.  The  same  protection 

18  Barbe  v.  Territory,  86  P.  61,  16  Okl.  562;   Id.,  91  P.  783,  19  Okl.  119. 
l«Dobbs  v.  State,  115  P.  370,  5  Okl.  Cr.  475,  denying  rehearing  114  P.  358. 
5  Okl.  Cr.  475. 

17  Johnson  v.  State,  97  P.  1059,  1  Okl.  Cr.  321,  18  Ann.  Cas.  300. 

1  Patterson  v.  United  States,  7  Okl.  Cr.  272,  118  P.  150. 
l9Dobbs  v.  State,  115  P.  370,  5  Okl.  Cr.  475,  denying  rehearing  114  P.  358, 
5  Okl.  Cr.  475. 

20  State  v.  Outcelt,  143  P.  198,  43  Okl.  482. 
(26) 


Art  1)  COURTS  AND  JUDGES  §§  37~38 

extends  to  judges  of  inferior  and  limited,  as  well  as  to  those  of 
general,  jurisdiction  as  to  liability  for  official  acts.21 

§  37.     Change  of  judge 

Under  the  constitutional  provision  that  right  and  justice  shall  be 
administered  without  prejudice,  a  change  of  judge  for  bias  or 
prejudice  is  a  constitutional  right.22 

§  38.     —  —    Disqualifications 

When  prejudice  of  the  trial  judge  is  made  ground  for  a  motion 
for  change  of  judge,  the  Legislature  may  prescribe  the  method  of 
determining  such  matter,  but  it  cannot  abolish  such  ground  of  dis- 
qualification.23 

The  interest  of  the  district  judge  as  a  resident  taxpayer  of  the 
petitioning  municipality  in  condemnation  proceedings  will  not  dis- 


v.  Dibbens,  61  Okl.  221,  160  P.  589,  L.  R.  A.  1917B,  360.  A 
county  judge,  in  rendering  judgment  in  a  case  pending  in  his  court,  acts 
judicially,  and  is  not  amenable  to  a  civil  action  for  damages,  though  the 
judgment  was  erroneous,  and,  in  rendering  it,  he  erroneously  exceeds  the 
jurisdiction  of  his  court.  Comstock  v.  Eagleton,  69  P.  955,  11  Okl.  487,  ap- 
peal dismissed  (1905)  25  S.  Gt.  210,  196  U.  S.  99,  49  L.  Ed.  402. 

Where  an  administrator,  pursuant  to  order  of  county  court,  paid  into  court 
an  amount  in  excess  of  inheritance  tax,  and  the  county  judge  failed  to  turn 
over  money  after  expiration  of  term,  the  money  did  not  come  into  his  hands 
as  county  judge  so  as  to  render  his  bond  liable.  Pitman  v.  State,  59  Okl. 
270,  158  P.  1137. 

22  Rea  v.  State,  105  P.  384,  3  Okl.  Cr.  276,  139  Am.  St.  Rep.  954. 

Sess.  Laws  1908,  p.  285,  c.  27,  art.  1,  §  8,  provides  that  no  judge  of  the  coun- 
ty court  shall  sit  in  any  proceeding  after  a  party  has  filed  an  affidavit  in 
writing,  corroborated  by  two  credible  persons,  that  affiant  has  reason  to  be- 
lieve and  does  believe  that  the  judge  is  prejudiced,  where  he  cannot  have  a 
fair  and  impartial  trial  before  him.  Held,  that  this  provision  does  not  abridge 
the  declaration  in  Bill  of  Rights  that  right  and  justice  shall  be  administered 
without  sale,  denial,  delay,  or  prejudice.  Ex  parte  Ellis,  105  P.  184,  3  Okl. 
Cr.  220,  25  L.  R.  A.  (N.  S.)  653,  Ann.  Gas.  1912A,  863.  Under  Bill  of  Rights, 
art.  2,  §  6,  providing  that  right  and  justice  shall  be  administered  without 
sale,  denial,  delay,  or  prejudice  as  well  as  by  the  unwritten  dictates  of  nat- 
ural justice,  the  courts  are  commanded  to  administer  justice  without  prej- 
udice. Id. 

-3Mayes  v.  Pitchford,  109  P.  821,  26  Okl.  129;  Ex  parte  Hudson,  106  P. 
540,  3  Okl.  Cr.  393,  rehearing  denied  107  P.  735,  3  Okl.  Cr.  393;  Ex  parte 
Hines,  106  P.  544,  3  Okl.  Cr.  408,  rehearing  denied  107  P.  738,  3  Okl.  Cr.  408. 

Const.  Bill  of  Rights,  art.  2,  §  6,  prohibits  a  judge  from  trying  a  case  in 
which  he  is  prejudiced  by  or  for  either  party.  McCullough  v.  Davis,  11  Okl. 
Cr.  431,  147  P.  779. 

A  judge  may  be  disqualified  for  prejudice  in  favor  of  accused,  though  such 
disqualification  is  not  provided  for  by  statute,  since  it  rests  on  constitutional 
grounds.  State  v.  Brown,  126  P.  245,  8  Okl.  Cr.  40,  Ann.  Gas.  1914C,  394. 

(27) 


§  39  COURTS  AND  COURT  OFFICERS  (Ch.  1 

qualify  him; 24  but  it  has  been  held  otherwise  where  the  action  con- 
stituted an  attack  on  the  validity  of  a  special  bond  election  to  se- 
cure money  to  build  a  courthouse  and  jail.25  That  a  county  judge 
was  disqualified  by  prejudice  in  the  matter  of  the  probate  of  a  will 
did  not  disqualify  him  to  determine  other  questions  in  the  adminis- 
tration of  the  estate.28 

§  39.    Relationship 

The  word  "party,"  as  used  in  the  statute  disqualifying  a  judge 
to  sit  in  a  case,  wherein  one  party  is  related  to  him  within  the 
fourth  degree  of  consanguinity,  includes  any  person  directly  inter- 
ested in  the  subject-matter  of  the  suit  or  the  result  of  the  same, 
though  not  a  party  of  record.27  A  judge  is  disqualified  to  sit  in 
a  case  in  which  he  is  a  material  witness  28  or  in  which  he  partici- 
pated as  an  attorney  before  his  elevation  to  the  bench.29  This  rule 
seems  to  have  been  qualified  in  one  criminal  case,30  but  cannot  be 
relaxed  in  civil  cases,  particularly  where  there  are  contesting  liti- 
gants. It  has  been  held  that  a  county  judge  was  not  disqualified 
from  settling  a  guardian's  account  because  he  acted  as  attorney  for 
the  guardian  in  the  matter  of  his  appointment.31 


2*  Lawton  Rapid  Transit  Ry.  Co.  v.  City  of  Lawton,  122  P.  212,  31  Okl.  458. 
26Mackey  v.  Crump,  49  Okl.  578,  153  P.  1128;    Rev.  Laws  1910,  §  5812. 

26  State  v.  Johnson,  139  P.  699,  40  Okl.  511. 

27  State  v.  Pitchford,  141  P.  433,  43  Okl.  105. 

Under  Rev.  Laws  1910,.  §  5812,  a  judge  is  disqualified  to  hear  a  cause 
wherein  his  son  is  employed  on  a  contingent  fee  as  attorney  for  one  party 
and,  under  section  248,  giving  him  a  lien,  has  an  interest  in  the  result.  State 
v.  Pitchford,  141  P.  433,  43  Okl.  105. 

•In  a  proceeding  in  the  county  court  by  a  guardian  to  invest  the  money  of 
his  ward  pursuant  to  Comp.  Laws  1909,  §  5513,  the  guardian  was  a  "party" 
thereto  within  Comp.  Laws  1909,  §  5139,  disqualifying  a  judge  to  act  in  any 
proceeding  in  which  he  may  be  related  to  any  party  within  the  fourth  degree ; 
and  a  brother-in-law  of  the  guardian  was  disqualified  to  sit  as  judge  in  the 
proceeding.  •  Hengst  v.  Burnett,  40  Okl.  42,  135  P.  1062. 

28  Powers  v.  Cook,  48  Okl.  43,  149  P.  1121,  L.  R.  A.  1915F,  766. 

29  Dodd  v.  State,  115  P.  632,  5  Okl.  Cr.  513. 

30  The  mere  fact  that  a  judge  may  be  witness  in  case,  or  that  he  has  con- 
ducted a  preliminary  examination  resulting  in  a  prosecution  of)  defendant, 
in  the  absence  of  any  showing  of  bias  or  prejudice  on  his  part,  does  not  dis- 
qualify him.    State  v.  Lockridge,  118  P.  152,  6  Okl.  Cr.  216,  45  L.  R.  A.  (N.  S.) 
525,  Ann.  Cas.  1913C,  251. 

81  Title  Guaranty  &  Surety  Co.  v.  Slinker,  128  P.  696,  35  Okl.  128;  Id.,  128 
P.  698,  35  Okl.  153. 

(28) 


Alt.  1)  COURTS  AND  JUDGES  §    40 

§  40.    Bias  and  prejudice 

Public  confidence  in  the  judicial  system  demands  that  the  cause 
be  tried  by  an  unprejudiced  judge,  and  a  denial  of  a  change  of 
judge  on  the  ground  of  prejudice  will  be  presumed  a  denial  of 
justice,  at  least  where  the  prejudice  is  clearly  made  to  appear.32 

A  constitutional  provision  guaranteeing  every  person  charged 
with  crime  a  trial  without  prejudice  does  not  include  the  opinion 
of  the  judge  as  to  the  guilt  or  innocence  of  the  defendant;  but  to 
disqualify  the  judge,  it  must  appear  that  he  is  biased  against  him  to 
such  an  extent  as  will  prevent  his  giving  a  fair  trial.33 

Judicial  officers  should  abstain  from  participating  in  public  meet- 
ings in  which  questions  are  discussed,  which  might  afterward  come 
before  them  for  decision.  A  judge  should  not  commit  himself  on 
questions  of  fact  or  law  which  may  come  before  him,  until  the  mat- 
ter is  properly  presented  in  open  court.  There  is  a  manifest  differ- 
ence between  being  prejudiced  against  the  commission  of  a  crime 
and  being  prejudiced  against  a  person  charged  with  its  commission, 
and  the  fact  that  a  judge  is  prejudiced  against  the  crime  does  not 
disqualify  him  from  presiding  at  a  criminal  trial.34 

32  Ex  parte  Ellis,  105  P.  184,  3  Okl.  Cr.  220,  25  L.  R.  A.  (N.  S.)  653,  Ann. 
Cas.  1912A,  863.    Accused  has  a  right  to  a  change  of  judge  where  the  presid- 
ing judge  is  prejudiced  against  him.    Lewis  v.  Russell,  111  P.  818,  4  Okl.  Cr. 
129. 

Under  the  law  prior  to  the  passage  of  Act  March  22,  1909  (Laws  1909,  c. 
14;  Snyder's  Comp.  Laws  1909,  §§  2012-2017),  it  was  error  to  refuse  a  change 
of  judge,  where  defendant  filed  an  affidavit  stating  that  the  presiding  judge 
was  prejudiced  against  him,  and  for  that  reason  he  could  not  obtain  a  fair 
trial  before  such  judge.  Cavenees  v.  State,  109  P.  125,  3  Okl.  Cr.  729. 

Where  a  judge  had  not  consulted  with  the  county  attorney  as  to  the  facts 
in  a  perjury  case,  and  knew  nothing  concerning  the  facts  thereof  further 
than  that  the  case  was  pending  in  his  court,  the  fact  that  the  judge  stated 
upon  hearing  of  a  demurrer  to  the  information  that  he  thought  the  county 
attorney  was  correct  in  desiring  the  trial  before  the  trial  of  another  person 
for  murder  for  whom  the  one  accused  of  perjury  was  stated  to  be  an  impor- 
tant witness,  so  that,  if  the  latter  was  innocent  of  perjury  alleged  to  have 
been  committed  in  a  previous  trial  of  the  one. charged  with  murder,  such  per- 
son might  have  the  benefit  of  his  evidence,  and  that,  if  the  one  charged  with 
perjury  was  guilty,  the  state  might  have  the  benefit  of  the  exclusion  of  his 
testimony,  did  not  show  prejudice  of  the  judge  towards  the  one  charged  with 
perjury  so  as  to  disqualify  him  from  presiding  at  the  trial.  O'Brien  v. 
Clark,  113  P.  543,  5  Okl.  Cr.  112. 

33  Ingles  v.  McMillan,  113  P.  998,  5  Okl.  Cr.  130,  45  L.  R.  A.  (N.  S.)  511. 
«4  Crawford  v.  Ferguson,  115  P.  278,  5  Okl.  Cr.  377,  45  L.  R.  A.  (N.  S.)  519 ; 


§§    41-42  COURTS  AND  COURT   OFFICERS  (Ch.  1 

§  41.    -    Objections  and  procedure 

Where  accused  in  good  faith  desires  a  change  of  judge  on  account 
of  prejudice,  he  should  exercise  due  diligence  as  soon  as  he  can  con- 
veniently assert  his  rights  after  knowledge  of  such  prejudice.85  An 
application  for  change  of  judge  for  bias,  stating  no  facts  and  filed 
after  the  jury  is  impaneled,  is  properly  denied.86  A  defendant,  seek- 
ing to  disqualify  a  trial  judge  on  any  ground,  must  follow  the  statu- 
tory procedure.87  The  application  or  affidavit  for  change  of  judge 
for  prejudice  must  set  forth  the  facts  on  which  the  claim  is  based.88 

Where  speeches  made  by  the  judge  in  his  campaign  for  re-election 
showed  that  he  was  prejudiced  against  defendant,  an  application 
for  change  of  judge  should  have  been  granted.39 

Where  a  district  judge  is  disqualified  to  hear  and  determine  a 
cause  pending  before  him,  and  refuses  to  certify  his  disqualifica- 
tion when  requested  in  the  manner  provided  by  law,  mandamus  will 
lie.40 

§  42.    -    Form  —  Application  for  disqualification  of  judge 

APPLICATION  FOR  DISQUALIFICATION  OF  JUDGE 

Comes  now  the  above-named  defendant,  J.  D.,  and,  after  having 
given^  reasonable  notice  to  the  plaintiff  herein,  makes  this  his  ap- 
plication^ for  a  certification  of  disqualification  of  the  Honorable 
-  ,  judge  of  this  eourt,  in  the  above-entitled  cause,  and  in 
support  hereof  this  defendant  states  : 

That  this  is  an  action  instituted  by  the  plaintiffs  for  the  purpose 

118  R  152'  6  Okl-  Cr'  216>  45  L"  R-  A-   (N-  S.)   525,  Ann. 

"Ingles  v.  McMillan,  113  P.  998,  5  Okl.  Cr.  130,  45  L.  R.  A.  (N   S.)  511. 
6  White  v.  State,  50  Okl.  97,  104,  150  P    716   718 

**"  ?^?f  r~  Hudson'  106  p-   540'  3  Okl.  Cr.  393,  rehearing  denied  10T  P. 
do,  3  Okl.  Cr.  393  ;    Ex  parte  Hines,  106  P.  544,  3  Okl.  Cr.  408    rehearine 
denied,  107  P.  738,  3  Okl.  Cr.  408. 


*ln  x  0kL  Cr<  129'  ln  R  818'    Mrers  v«  Bail*y,  109  P.  820, 

^1.  133  ;   Mayes  v.  Pitchford,  109  P.  821,  26  Okl.  129  ;    Kelly  v.  Ferguson 
114  P.  631,  5  Okl.  Cr.  316;    Id.,  115  P.  284,  5  Okl    Cr.  700 

Where  it  is  sought  to  disqualify  a  judge  because  a  material  witness  for 
Defendant,   the  application)  for  change  of  judge  must  clearly  show  wherein 
testimony  of  the  judge  is  material.    Johnson  v.  Wells,  115  P.  375,  5  Okl. 
v/r.  oDy. 

J9McCullough  v.  Davis,  11  Okl.  Cr.  431,  147  P   779 
10  State  v.  Fullerton,  76  Okl.  35,  183  P.  979 
(30) 


Art.  1)  COURTS  AND  JUDGES  §   42 

of  quieting  their  title  to  certain  property  described  as  follows,  to 
wit:  [Describe  land.]  That  said  action  is  a  suit  in  equity,  and 
said  plaintiffs  seek  herein  to  have  canceled,  set  aside,  vacated,  and 
held  for  naught  a  certain  option  contract  made,  executed,  and  de- 
livered by  the  plaintiffs  on  or  about ,  19 — ,  a  copy  of  which 

said  option  contract  is  attached  to  the  plaintiffs'  petition  herein, 
marked  Exhibit  A,  and  to  which  reference  is  hereby  made,  and  to 
have  canceled,  set  aside,  and  held  for  naught  a  certain  warranty 

deed  and  a  certain  contract,  both  dated ,  19 — ,  executed  by 

the  plaintiffs  to  this  defendant,  J.  D.,  a  copy  of  which  said  deed 
and  contract  are  attached  to  the  plaintiffs'  petition,  marked  Ex- 
hibits B  and  C,  and  to  which  reference  is  hereby  made. 

That  a  prior  action  was  heretofore  instituted  in  this  court  by 
the  plaintiffs  herein  against  one  F.  S.  to  have  canceled  and  set 
aside  certain  instruments  of  conveyance  made,  executed,  and  deliv- 
ered by  the  said  plaintiffs  to  the  said  F.  S.,  which  said  action  is  No. 

in  the  district  court  of county,  Oklahoma,  and  which 

said  action  was  heretofore,  on  or  about  the day  of , . 

19 — ,  tried  in  this  court  before  his  honor, ,  judge  of  the  said 

district  court  of county,  Oklahoma. 

That  in  said  action  last  above  referred  to  it  was  the  contention 
of  the  said  defendant  therein,  F.  S.,  that  at  least  a  part  of  the  con- 
sideration for  the  deed  executed  to  him  by  the  plaintiffs,  and  which 
the  plaintiff  sought  to  have  canceled,  was  certain  financial  and 
other  assistance  rendered  by  the  said  defendant,  F.  S.,  in  connec- 
tion with  the  conveyances  to  this  defendant,  J.  D.,  and  that  upon  the 

trial  of  said  cause  No. in.  the  district  court  of county, 

Oklahoma,  before  his  honor, ,  judge  of  said  court,  testimony 

was  introduced  and  heard  as  to  the  transactions  resulting  in  the 

option  contract  of ,  19 — ,  executed  by  the  plaintiffs  to  this 

defendant,  J.  D.,  and  with  reference  to  the  contract  and  deed  of 
,  19 — ,  executed  by  said  plaintiffs  to  this  defendant,  J.  D. 

That  this  defendant,  J.  D.,  was  not  a  party  to  said  cause  No. 
in  the  district  court  of county,  Oklahoma,  and  was 


not  represented  or  heard  therein. 

That  in  the  present  action  the  plaintiffs  seek  to  have  the  instru- 
ments above  mentioned,  which  were  executed  by  the  plaintiffs  to 
this  defendant,  canceled  upon  the  ground,  among  others,  that  said 

(31) 


§  42  COURTS  AND  COURT  OFFICERS  (Ch.  1 

instruments  are  invalid  on  account  of  want  of  consideration,  and  by 
pleadings  filed  in  this  cause  an  issue  of  fact  has  been  joined  upon 
the  question  of  want  of  consideration  for  the  execution  of  said  in- 
struments, as  well  as  upon  other  questions  referring  to  the  validity 
of  said  instruments  above  mentioned  executed  by  the  plaintiffs  to 
said  defendant,  J.  D. 

That  this  cause  is  assigned  for  trial  before  his  honor,  , 

on  the day  of ,  19 — ,  who  is  one  of  the  judges  of  said 

district  court  of county,  Oklahoma.  That  in  said  cause  No. 

in  the  district  court  of  county,  Oklahoma,  which 

was  heard  by  his  honor,  the  said ,  on  or  about  the day 

of ,  19 — ,  his  honor,  the  said ,  made  findings  of  fact  up- 
on the  questions  involved  in  said  cause,  and  among  other  facts  found 
with  reference  to  the  instruments  above  mentioned,  executed  by 
the  plaintiffs  to  this  defendant,  and  in  connection  with  the  pro- 
curement of  which  the  said  defendant  in  said  cause  No. con- 
tended that  he  had  rendered  certain  financial  and  other  assistance 
as  follows: 

"I  might  add  another  word :  Even  if  F.  C.  has  paid  $666.67,  and 
that  is  all  the  testimony  in  the  case  shows  he  did  pay  for  the  sixth 
interest  in  this  royalty,  which  to  this  day  has  produced  something 
like  $15,000,  still  the  $666.67  absolutely  gained  no  advantage  for  A. 
M.  at  all,  because  he  paid  it  for  an  agreement  which  was  supported 
by  absolutely  not  one  penny's  consideration,  unless  there  is  a  dollar  in 
the  agreement."  (Italics  ours.) 

That  the  payment  above  referred  to,  and  which  his  honor,  the 
said ,  found  was  no  advantage  whatever  to  the  plaintiff  here- 
in, A.  M.,  was  a  payment  which  the  said  defendant  in  said  cause 

No. testified  he  had  made  in  connection  with  the  execution 

and  delivery  of  the  instruments  which  the  plaintiff  in  this  case 
made,  executed,  and  delivered  to  the  defendant,  J.  D.,  and  which 
the  said  plaintiffs  are  seeking  in  this  caus«  to  have  canceled.  That 

by  said  findings  above  referred  to  his  honor,  the  said ,  found 

there  was  no  consideration  for  the  execution  of  the  instruments 
executed  by  the  plaintiffs  to  this  defendant,  J.  D.,  and  which  said 
plaintiffs  are  seeking  to  cancel  in  this  action. 

That  in  his  finding  of  facts  in  connection  with  said  cause  No. 
his  honor,  the  said ,  further  found  as  follows : 

"I  am  not  certain  that  there  is  any  more  than  a  dollar,  because 

(32) 


Art.  1)  COURTS  AND  JUDGES  §    42 

J.  D.  took  an  agreement  to  collect  A.  M/s  royalty  or  one-fourth 
thereof  and  pay  him  back  with  his  own  royalty,  with  an  obliga- 
tion not  to  pay  any  one  single  penny  unless  he  did  collect  the  royal- 
ties; in  other  words,  J.  D.  was  not  out  a  single  dollar,  except  for 
the  option,  which  he  might  have  exercised  or  not  as  he  saw  fit,  but 
he  actually  made  A.  M.  pay  $333.34  back  to  get  that  option  off; 
and  after  he  did  that  he  gave  him  one-half  of  the  royalty.  Of 
course,'  I  am  not  holding  that  that  contract  is  void,  because  that 
contract  is  not  involved  in  this  case.  However,  A.  M.  had  still  an 
option  for  $100  on  his  hands." 

That,  as  heretofore  stated,  this  is  an  equitable  action,  and  his 

honor,  the  said ,  will  pass  upon  both  the  questions  of  law 

and  fact  involved  herein. 

That  by  reason  of  the  matters  and  things  above  set  forth  this 
defendant  states  that  his  honor,  the  said ,  is  biased  and  prej- 
udiced herein,  and  has  formed  and  expressed  his  opinion  upon 
certain  questions  of  fact  which  are  involved  in  this  action,  and 
upon  which  he,  as  the  judge  before  whom  this  cause  has  been 
assigned  for  trial,  must  pass  upon  in  the  trial  of  this  cause,  and 
that  by  reason  thereof  he  has  prejudged  this  cause,  and  is  disquali- 
fied from  hearing  the  same,  and  should  so  certify  his  disqualifica- 
tion. 

This  defendant  states  that  the  matters  and  things  hereinabove 
referred  to  all  appear  of  record  in  this  cause  and  in  cause  No.  — 
in  this  court,  and  that  the  records  and  pleadings  in  said  cause  No. 

and  in  this  cause  are  referred  to  and  made  a  part  hereof 

in  so  far  as  necessary  to  show  the  matters  and  things  hereinbefore 
set  out. 

Wherefore  this  defendant  prays  that  this,  application  for  disquali- 
fication of  his  honor,  the  said ,  be  allowed  and  granted,  and 

that  his  honor,  the  said ,  certify  herein  his  disqualification  to 

hear  this  cause,  and  that  such  other  and  further  proceedings  be  had 
and  taken  herein  as  are  consistent  with  right  and  justice  and  the 
statutes  in  such  cases  made  and  provided. 

J.  D.,  Applicant, 

By }  His  Attorneys. 

HON.PL.&  PEAC.— 3  (33) 


§  42  COURTS  AND  COURT  OFFICERS  (Ch.  1 

State  of  Oklahoma,\  gg  . 
County  of  —    —  J 
J.  D.,  of  lawful  age,  being  first  duly  sworn,  upon  oath  deposes 

and  says : 

That  he  is  the  defendant  named  in  the  above  and  foregoing  ap- 
plication for  disqualification  of  judge;  that  he  has  read  said  ap- 
plication and  knows  the  contents  thereof,  and  that  the  matters 
and  things  therein  set  forth  are  true  and  correct. 

[Signed]     J.  D. 

Subscribed  and  sworn  to  before  me  this  —       -  day  of  , 

19—. 

[Seal.]  [Signed]    ,   Notary   Public. 

My  commission  expires . 

NOTICE;  OF  APPLICATION  FOR  DISQUALIFICATION  OF  JUDGE 

To  the  Above-Named  Plaintiffs,  A.  M.  and  B.  M. : 

You  will  please  take  notice  that  the  above-named  defendant,  J. 
D.,  will  on  this  day  file  with  the  court  clerk  of county,  Okla- 
homa, ex  officio  clerk  of  the  district  court  of  -  —  county,  Okla- 
homa, his  application  for  the  disqualification  of  the  Honorable 
,  judge  of  said  court;  in  the  trial  of  this  case,  and  said  ap- 
plication, a  copy  of  which  is  attached  to  this  notice,  will  be  present- 
ed to  the  said  Honorable —  — ,  at  the  district  court  room  in  the 

county  court  house  at  Oklahoma,  on  the  day  of 

,  19 — ,  at o'clock M.,  or  as  soon  thereafter  as 

counsel  may  be  heard. 

You  will  therefore  govern  yourselves  accordingly. 

— ,  Attorneys  for  Defendant,  J.  D. 

Service  of  the  above  and  foregoing  notice  is  hereby  acknowledged 
to  have  been  made  upon  the  above-named  plaintiffs,  A.  M;.  and  B. 

M.,  upon  this  —       -  day  of = ,  19 — ,  at o'clock 

M.,  and  receipt  of  a  copy  of  the  application  for  disqualification  is 
also  acknowledged  to  have  been  delivered  simultaneously  with  the 
service  of  the  above  and  foregoing  notice. 

,  Attorneys  for  Plaintiffs. 

(34) 


Art.  1)  COURTS  AND  JUDGES  §§  43~46 

§  43.     Waiver  of  disqualifications 

The  disqualification  of  a  judge  is  a  matter  of  public  policy  and 
cannot  be  waived.41  Where  a  special  judge  is  elected  or  agreed 
upon  in  a  particular  case,  which  is  not  finally  determined  at  the 
term  at  which  he  is  elected  or  agreed  upon,  and  he  presides  at  a 
subsequent  term  at  which  his  authority  is  recognized,  any  objec- 
tions that  he  was  not  re-elected,  or  reagreed  upon,  are  waived.42 
But  the  right  of  accused  to  a  change  of  judge  where  the  presid- 
ing judge  is  prejudiced  against  him,  cannot  be  abrogated.43 

§  44.     Acts  of  disqualified  judge 

On  the  filing  by  accused  of  an  affidavit  in  proper  time,  stating 
that  he  cannot  have  a  fair  and  impartial  trial  on  account  of  the 
prejudice  of  the  judge,  such  judge  cannot  thereafter  perform  any 
official  act  binding  on  accused  except  the  allowance  of  such  change 
of  judge.44 

A  judge  who  is  disqualified  in  a  cause  by  reason  of  interest  may 
enter  a  formal  judgment  directed  by  the  appellate  court,  as  in  such 
case  he  is  not  required  to  exercise  any  judgment  or  discretion.45 
Where  a  trial  judge  is  disqualified,  he  cannot  make  a  valid  order 
appointing  a  special  county  .attorney  upon  the  suggestion  of  the 
disqualification  of  the  regular  attorney.46 

§  45.     Powers  at  chambers 

"Judges  of  the  district,  superior  and  county  courts  shall,  within 
their  respective  districts  and  counties,  be  authorized  to  hear  and 
determine  at  chambers,  motions  to  dissolve  attachments."  *7 

DIVISION  III. — DISTRICT  COURTS  AND  JUDGES 

§  46.     District  court — Where  held 

"The  terms  of  the  district  court  shall  be  held  at  the  county  seat 
of  the  respective  counties."  48 

41  Holloway  v.  Hall,  79  Okl.  163,  192  P.  219. 

42  Ex  parte  Elgan,  126  P.  584,  8  Okl.  Cr.  75. 

43  Lewis  v.  Russell,  111  P.  SIS,  4  Okl.  Cr.  129. 

44  Buchanan  v.  State,  101  P.  295,  2  Okl.  Cr.  126. 

45  Cullins  v.  Overton,  54  P.  702,  7  Okl.  470. 

46  Dodd  v.  State,  115  P.  632,  5  Okl.  Cr.  513. 

47  Rev.  Laws  1910,  §  5318. 
4  s  Const.  Okl.  art  7,  §  25. 

(35) 


§  47  COURTS  AND  COURT  OFFICERS  (Ch.  1 

§  47.     Districts  and  judges 

The  state  js  divided  into  district  court  judicial  districts.  Pro- 
vision is  made  by  statute  for  the  time  of  holding  terms  of  district 
court  in  various  counties.  In  certain  districts,  provision  is  made  for 
two  or  more  judges.49  Provision  is  made  for  two  additional  judges 
in  the  district  composed  of  Pawnee  and  Tulsa  counties.50 

The  state  Constitution  provides:  "Until  otherwise  provided  by 
law,  the  state  shall  be  divided  into  twenty-one  judicial  districts 
and  the  qualified  electors  in  each  of  the  said  districts  shall  elect  a 
judge  of  the  district  court  as  provided  herein,  except  in  the  Thir- 
teenth judicial  district  two  judges  shall  be  elected.  Such  judge 
shall  be  a  citizen  of  the  United  States,  and  shall  have  been  a  resi- 
dent of  the  territory  embraced  within  the  state  for  two  years,  and 
of  the  territory  comprising  his  district  at  least  one  year,  prior  to 
his  election;  and  he  shall  have  been  a  lawyer  licensed  by  some 
court  of  record,  or  shall  have  been  a  judge  of  some  court  of  record, 
or  both  such  lawyer  and  judge,  for  four  years  next  preceding  his 
election,  and  shall  reside  in  his  district  during  his  term  of  office. 
The  term  of  office  of  the  district  judge  shall  be  four  years,  and  at 
the  time  of  his  election  he  shall  have  reached  the  age  of  twenty- 
five  years.  Regular  terms  of  the  district  court  shall  be  held  in 
each  organized  county  of  this  state  at  least  twice  in  each  year. 
The  time  of  convening  the  district  court  in  each  county  in  this  state, 
until  the  Legislature  shall  otherwise  provide,  and  the  duration  of 
the  term,  shall  be  fixed  by  the  Supreme  Court  of  the  state.  The 
term  of  the  district  judges  elected  at  the  first  election  shall  expire 
on  the  last  day  next  preceding  the  second  Monday  in  January,  nine- 
teen hundred  and  eleven,  and  the  judges  of  the  district  court  there- 
after shall  be  elected  at  the  general  election  next  preceding  the  com- 
mencement of  their  terms  of  office. 

"In  case  of  the  illness  of  the  judge  elected  in  any  district,  or  if 
for  any  other  cause  he  shall  be  unable  to  preside  in  the  district  in 
which  he  was  elected,  the  Chief  Justice  may  designate  any  district 

• 

*°Rev.  Laws  1910,  §§  1779,  1780,  1793;  Sess.  Laws  1910-11,  pp.  176-178, 
§§  1-12;  Sess.  Laws,  1913,  p.  5,  §§  1-3;  p.  64,  §§  1-3;  p.  605,  §§  1-2;  Sess. 
Laws  1915,  p.  10,  §  1 ;  pp.  551,  552,  §§  1,  2 ;  Sess.  Laws  1917,  p.  183,  §§  1,  2 ; 
p.  185,  §  1;  p.  187,  §  1;  pp.  201-205,  §§  1-11;  Sess.  Laws  1919,  pp.  34,  55,  §§ 
1-3 ;  pp.  115,  116,  §§  1-4 ;  p.  336,  §§  1,  2 ;  p.  403,  §  1. 

co  Sess.  Laws  921,  p.  3  (S.  B.  No.  17),  §§  1-4. 

(36) 


Art   1)  COURTS  AND  JUDGES  §    48 

judge,  in  the  state  to  hold  any  term  of  court  in  said  district  in  lieu 
of  the  judge  elected  to  hold  the  courts  of  said  district.  When 
ever  the  public  business  shall  require  it,  the  Chief  Justice  may  ap- 
point any  district  judge  of  the  state  to  hold  court  in  any  district, 
and  two  or  more  district  judges  may  sit  in  any  district  separately 
at  the  same  time.  In  the  event  any  judge  shall  be  disqualified 
for  any  reason  from  trying  any  case  in  his  district,  the  parties  to 
such  case  may  agree  upon  a  judge  pro  tempore  to  try  the  same, 
and,  if  such  parties  cannot  agree,  at  the  request  of  either  party  a 
judge  pro  tempore  may  be  elected  by  the  members  of  the  bar  of 
the  district,  present  at  such  term.  If  no  election  for  judge  pro  tem- 
pore shall  be  had,  the  Chief  Justice  of  the  state  shall  designate 
some  other  district  judge  to  try  such  case."  61 

§  48.    Sessions — Time  for — Adjournments 

The  terms  of  courts  of  record  begin  on  the  day  fixed  by  law; 
and  if  the  judge  be  not  present  in  his  court,  or  a  judge  pro  tempore 
selected,  within  two  days  after  the  first  day  of  the  term,  then  the 
term  lapses,  and  cannot  thereafter  be  revived  by  the  judge  or  any 
other  officer  of  the  court;  and  any  attempted  proceedings  had  in 
such  court  after  the  lapse  of  the  term  is  coram  non  judice  and 
void.52  A  district  judge  may  hold  court  to  hear  matters  which  may 
be  disposed  of  without  a  jury,  though  the  court  expense  fund  has 
been  exhausted.  The  statute  fixing  the  terms  of  the  district  courts 
of  the  state  does  not  require  a  jury  term  to  be  held  and  expenses 
to  be  incurred,  chargeable  to  the  court  expense  fund,  when  that 
fund  has  been  exhausted.53 

The  fact  that  the  district  court  of  one  county  was  theoretically 
in  session  because  it  had  not  been  adjourned  sine  die  while  the 
judge  was  presiding  at  a  trial  in  another  county  in  the  same  district 
did  not  amount  to  a  violation  of  the  old  rule  that  two  courts  can- 
not be  in  session  in  the  same  district  at  the  same  time.54  Nor  were 
the  proceedings  of  adjourned  sessions  of  the  district  court  coram 
non  judice  and  void,  notwithstanding  the  regular  term  in  another 

61  Const.  Okl.  art.  7,  §  9. 

s  2  Wilson  v.   State,  109  P.  289,  3  Okl.  Or.  714;    Collins  v.  State,  114  P. 
1127,  5  Okl.  Cr.  254;   Douglas  v.  Same,  114  P.  1128,  5  Okl.  Or.  682. 
53  State  v.  Stanfleld,  126  P.  239,  34  Okl.  524. 
e*  In  re  Dossett,  37  P.  1066,  2  Okl.  369. 

(37) 


§§    48-51  COURTS  AND  COURT  OFFICERS  (Ch.  1 

county  in  the  same  district  had  intervened  between  the  time  of 
the  adjournment  and  the  convening  of  the  adjourned  session.53 

Where  a  judge  adjourns  the  court  without  fixing  any  time  at 
which  it  should  reconvene,  it  cannot  again  convene  until  the  next 
regular  session  of  the  court;56  but  if  the  court  is  adjourned  to  a 
day  certain,  and  the  judge  is  unable  to  hold  court  on  such  day  and, 
at  a  subsequent  day,  within  the  term,  a  session  is  held,  the  court  is 
legally  constituted  and  its  proceedings  are  valid.57 

The  times  for  holding  sessions  of  the  district  court  in  the  coun- 
ties of  the  fifth  district  were  recently  fixed  by  statute.58 

§  49.     Change  of  district — Disposition  of  cases  pending 

"In  any  county  detached  from  one  judicial  district  and  added  to 
another,  if  there  be  any  case  pending  in  the  district  court  of  such 
county  which  has  at  any  time  been  tried  by  the  judge  of  said 
court,  and  by  him  taken  under  advisement,  and  still  undecided,  it 
shall  be  the  duty  of  the  judge  who  tried  said  cause  to  make  and 
render  his  finding  and  judgment  therein  and  to  determine  all  the 
motions  therein,  and  to  allow  and  settle  the  case  made  therein  or 
dispose  of  such  case  in  all  respects  as  though  said  county  had  not 
been  detached  from  his  district."  59 

§  50.     Special  terms 

"Special  terms  of  the  district  court  in  any  county  in  a  district 
may  be  called  by  the  resident  judge  of  said  district,  by  order  en- 
tered of  record  in  such  court,  notice  of  such  special  term  to  be 
given  in  at  least  two  consecutive  issues  of  a  weekly  newspaper 
published  and  of  general  circulation  in  such  county,  prior  to  the 
convening  of  such  special  term."  60 

§  51.     Adjournment  of  term 

"The  regular  term  of  any  district  court  may  be  adjourned  from 
time  to  time,  or  sine  die,  by  a  resident  judge  of  the  district  court 
or  by  any  other  district  judge  assigned  and  holding  court  in  such 
district,  but  such  adjournment  shall  be  [to]  a  time  prior  to  the  con- 

85  In  re  Dossett,  37  P.  1066.  2  Okl.  369. 

16  Irwin  v.  Irwin,  37  P.  548,  2  Okl.  180. 

57  St.  Louis  &  S.  F.  R.  Co.  v.  James,  128  Pac.  279,  36  Okl.  19G. 

88  Sess.  Laws  1919,  c.  281. 

59  Rev.  Laws  1910,  §  1781. 

60  Rev.  Laws  1910,  §  1795. 

(38) 


Art.  1)  COURTS  AND  JUDGES  §§  52~54 

vening  of  the  next  regular  term.  The  regular  judge,  or  any  judge 
assigned,  may  make  all  orders  with  reference  to  the  adjournment 
of  the  term."61 

§  52.     Two  or  more  judges  sitting  at  same  time 

"Two  or  more  district  judges  may  sit  and  hold  court  at  the  same 
time  in  the  same  county  during  term  time ;  and  regular  terms  or 
adjourned  terms  of  court  in  two  or  more  counties  in  thevsame  judi- 
cial district  shall  proceed  until  the  same  are  adjourned  sine  die."  62 

§  53.     Additional  judge 

"When,  upon  petition  to  the  supreme  court  of  the  State  of  the 
majority  of  the  county  commissioners  of  the  counties  embraced  in 
any  judicial  district  in  this  state,  it  is  made  to  appear  that  any  dis- 
trict court  within  the  state  has  such  an  unusual  number  of  cases 
awaiting  trial  by  such  court  that  a  thorough,  prompt  and  effective 
administration  of  justice  cannot  be 'secured  in  said  district,  it 
shall  become  the  duty  of  said  court  to  recommend  to  the  Governor 
the  appointment  of  an  additional  judge  for  such  district  for  such 
period  as  the  court  may  consider  necessary  to  meet  the  condition ; 
and  upon  such  recommendation  the  Governor  shall  appoint  an  ad- 
ditional'judge  for  such  district  for  the  time  recommended  by  the 
court."  G3 

"Such  additional  judge  shall  possess  like  qualifications  and  pow- 
ers and  perform  such  duties  and  receive  such  compensation  as 
provided  by  law  for  other  district  judges  of  this  State."  6* 

§  54.     District  judges — Expenses 

"All  judges  of  the  district  court  of  the  state  of  Oklahoma,  shall 
be  paid  their  actual  and  necessary  traveling  expenses  while  hold- 
ing court  outside  <5f  the  county  wherein  said  district  judge  per- 
manently resides,  when  said  district  judge  shall  file  an  itemized 


61  Rev.  Laws  1910,  §  1794. 

62  Rev.  Laws  1910,  §  1796. 

63  Rev.  Laws  1910,  §  1782. 

64  Rev.  Laws  1910,  §  1783. 

Act  March  22,  1909  (Laws  1909,  c.  14,  art.  3)  §  3,  authorizing  the  Governor 
to  appoint  an  additional  district  judge,  held  not  a  violation  of  Const,  art. 
7.  §  9.  In  re  Byrd,  122  P.  516,  31  Okl.  549;  Oklahoma  City  Land  &  Develop- 
ment Co.  v.  Hare  (Okl.)  168  P.  407. 

(39) 


§§    54-56  COURTS  AND  COURT  OFFICERS  (Ch.  1 

statement  of  the  expenses,  sworn  to,  with  receipts  and  vouchers 
attached,  with  the  state  auditor."  65 

"When  any  district  judge  is  ordered  by  the  chief  justice  to  per- 
form duties  outside  his  district,  said  judge  shall  be  entitled  to  his 
necessary  and  actual  expense  incident  to  the  performance  of  such 
duties.  Said  judge,  when  so  assigned  outside  his  district,  shall 
certify  his  expense  account,  as  above  provided,  to  the  Chief  Jus- 
tice, and  when  such  account  is  so  certified  and  approved  the  state 
auditor  is  hereby  authorized  to "  issue  his  warrant  on  the  state 
treasurer,  to  be  paid  out  of  any  funds  in  the  treasury  not  otherwise 
appropriated."  66 

§  55.    Reporter — Appointment — Qualifications 

"The  district  judge  in  each  judicial  district  shall  appoint,  when- 
ever in  his  judgment  it  will  expedite  public  business  and  tend  to 
the  more  economical  administration  of  justice,  a  shorthand  reporter 
who  shall  be  well  skilled  in  the  art  of  stenography  and  competent 
to  perform  the  duties  required  of  him,  which  competency  shall  be 
ascertained  by  the  applicant  writing  correctly  one  hundred  and 
fifty  words  per  minute  for  five  consecutive  minutes  in  open  court, 
the  matter  written  not  being  previously  known  to  him."  ** 

§  56.    Duties  of  court  reporter 

"It  shall  be  the  duty  of  the  court  reporter  to  take  down  in  short- 
hand and  to  correctly  transcribe,  when  required,  all  the  proceed- 
ings upon  the  trial  of  any  cause,  as  well  as  all  statements  of  counsel, 
the  witnesses  or  the  court,  made  during  the  trial  of  any  cause  or 
with  reference  to  any  cause  pending  for  trial,  when  required  by  a 
party  or  attorney  interested  therein,  and  all  other  matters  that 
might  properly  be  a  part  of  a  case-made  for  appeal  or  proceeding 
in  error.  An  attorney  in  any  case  pending  shall  have  the  right  to 
request  of  the  court  or  stenographer  that  all  such  statements  or 
proceedings  occurring  in  the  presence  of  the  stenographer,  or  when 
his  presence  is  required  by  such  attorney,  shall  be  taken  and 
transcribed.  A  refusal  of  the  court  to  permit,  or,  when  requested, 
to  require  any  statement  to  be  taken  down  by  the  stenographer, 
or  transcribed  after  being  taken  down,  upon  the  same  being  shown 

85  Sess.  Laws  1919,  c.  33,  §  1.  «*  Rev.  Laws  1910,  §  1785. 

«6Rev.  Laws  1910,  §  1784. 

(40) 


Art.  1)  COURTS  AND  JUDGES  §§  57~60 

by  affidavit  or  other  direct  and  competent  evidence,  to  the  supreme 
court,  shall  be  deemed  prejudicial  error,  without  regard  to  the 

merits  thereof."  °8 

- 

§  57.    Salary  and  fees 

The  district*  court  reporter  shall  receive  an  annual  salary  of 
$1,800  per  year.69 

"In  addition  to  the  annual  salary  of  said  stenographer  he  shall 
charge  and  receive  ten  cents  per  folio  for  writing  transcripts :  Pro- 
vided, that  two  carbon  copies  shall  be  furnished  without  charge."  70 

"The  reporter  shall,  on  the  request  of  either  party  in  a  civil  or 
criminal  case,  make  out  such  transcript  and  deliver  the  same  to- 
the  party  desiring  it,  on  payment  of  his  fees  therefor  by  such  party 
at  the  rate  of  ten  cents  per  folio,  which  shall  be  allowed  as  taxable 
cost."  71 

§  58.    Traveling  expenses 

"The  reporter  shall  proceed  from  county  to  county  where  the 
district  courts  are  held  and  shall  be  in  attendance  upon  said  courts 
to  perform  such  duties  as  shall  be  required  of  him,  and  shall  re- 
ceive as  traveling  expenses  for  each  mile  actually  and  necessarily 
traveled  in  going  to,  and  returning  from  each  district  court,  to  be 
paid  by  the  county  to  which  he  travels,  the  sum  of  five  cents  per 
mile."  72 

§  59.    Tenure  and  oath  of  office 

"The  reporter  shall  hold  his  office  at  the  pleasure  of  the  Judge 
appointing  him,  and  his  oath  of  office  shall  be  filed  in  the  office  of 
the  clerk  of  the  district  court."  73 

§  60.    Notes  filed — Admissibility  in  evidence — Transcripts 

"The  shorthand  reporter  in  any  court  of  record  shall  file  his 
notes  taken  in  any  case  with  the  clerk  of  the  court  in  which  the 
cause  was  tried.  Any  transcript  of  notes  so  filed,  duly  certified  by 
the  reporter  of  the  court  who  took  the  evidence  as  correct,  shall  be 
admissible  as  evidence  in  all  cases,  of  like  force  and  effect  as  tes- 
timony taken  in  the  cause  by  deposition,  and  subject  to  the  same 

«8  Rev.  Laws  1910,  §  1786.  «  Rev.  Laws  1910,  §  1789. 

69  Sess.  Laws  1919,  c.  211,  §  1.  72  Rev.  Laws  1910,  §  1790. 

70  Rev.  Laws  1910,  §  1787.  «  Rev.  Laws  1910,  §  1791. 

(41) 


§  61  COURTS  AND  COURT  OFFICERS  (Ch.  1 

objection ;  a  transcript  of  said  notes  may  be  incorporated  into  any 
bill  of  exceptions  or  case-made.  On  appeal  it  shall  be  the  duty  of 
the  reporter  to  furnish  such  transcript  when  demanded,  as  requir- 
ed by  law.  If  any  reporter  ceases  to  be  the  official  reporter  of  the 
court,  and  thereafter  makes  a  transcript  of  the  notes  taken  by  him 
while  acting  as  'official  reporter,  he  shall  swear  to  the  transcript  as 
true  and  correct,  and  when  so  verified  the  transcript  shall  have  the 
same  force  and  effect  as  if  certified  while  he  was  official  reporter."  7* 

§  61.     Appeal  to  district  court 

"A  judgment  rendered,  or  final  order  made,  by  any  tribunal, 
board  or  officer  exercising  judicial  functions,  and  inferior  in  ju- 
risdiction to  the  district  court,  may  be  reversed,  vacated  or  modified 
by  the  district  court  except  where  an  appeal  to  some  other  court 
is  provided  by  law."  73 

"An  appeal  may  be  taken  to  the  district  court  from  a  judgment, 
decree  or  order  of  the  county  court : 

''First.  Granting,  or  refusing,  or  revoking  letters  testamentary 
or  of  administration,  or  of  guardianship. 

"Second.  Admitting,  or  refusing  to  admit,  a  will  to  probate. 

"Third.  Against  or  in  favor  of  the  validity  of  a  will  or  revoking 
the  probate  thereof. 

"Fourth.  Against  or  in  favor  of  setting  apart  property,  or  making 
an  allowance  for  a  widow  or  child. 

"Fifth.  Against  or  in  favor  of  directing  the  partition,  sale  or  con 
veyance  of  real  property. 

"Sixth.  Settling  an  account  of  an  executor,  or  administrator  or 
guardian. 

"Seventh.  Refusing,  allowing  or  directing  the  distribution  or 
partition  of  an  estate,  or  any  part  thereof  or  the  payment  of  a 
debt,  claim,  legacy  or  distributive  share ;  or, 

"Eighth.  From  any  other  judgment,  decree  or  order  of  the  county 
court  in  a  probate  cause,  or  of  the  judge  thereof,  affecting  a  substan- 
tial right."  70 

"If  the  judgment  of  a  justice  of  the  peace,  taken  on  error,  as 
herein  provided,  to  the  county  or  district  court,  be  affirmed,  it  shall 
be  the  duty  of  such  court  to  render  judgment  against  the  plaintiff 

**  Rev.  Laws  1910,  §  1792.  ™  Rev.  Laws  1910,  §  6501. 

75  Rev.  Laws  1910,  8  5235. 

(42) 


Art  1) 


COURTS  AND  JUDGES 


61-63 


in  error  for  the  costs  of  suit,  and  award  execution  therefor;  and  the 
court  shall  thereupon  order  the  clerk  to  certify  its  decision  in  the 
premises  to  the  justice,  that  the  judgment  affirmed  may  be  enforc- 
ed, as  if  such  proceedings  in  error  had  not  been  taken;  or  such 
court  may  award  execution  to  carry  into  effect  the  judgment  of 
such  justice,  in  the  same  manner  as  if  such  judgment  had  been 
rendered  in  the  county  or  district  court."  77 

"When  the  proceedings  of  a  justice  of  the  peace  are  taken  in 
error  to  the  county  or  district  court,  in  the  manner  aforesaid,  and 
the  judgment  of  such  justice  shall  be  reversed  or  set  aside,  the 
court  shall  render  judgment  of  reversal,  and  for  the  costs  that 
have  accrued  up  to  that  time,  in  favor  of  the  plaintiff  in  error,  and 
award  execution  therefor;  and  the  same  shall  be  retained  by  the 
court  for  trial  and  final  judgment,  as  in  cases  of  appeal."  78 

"If  the  county  or  district  court  affirm  a  judgment  on  petition  in 
error,  it  shall  also  render  judgment  against  the  plaintiff  in  error, 
for  five  per  cent  upon  the  amount  due  from  him  to  the  defendant  in 
error,  unless  the  court  shall  enter  upon  its  minutes  that  there  was 
reasonable  grounds  for  the  proceedings  in  error."  79 

§  62.    Party  in  default 

Any  party  aggrieved  may  appeal  from  the  county  court,  except 
where  the  decree  or  order  of  which  he  complains,  was  rendered  or 
made  upon  his  default.80 


§  63. 


Who  may  appeal 


"A  person  interested  in  the  estate  or  funds  affected  by  the  de- 
cree or  order,  who  was  not  a  party  to  the  special  proceeding  in 
which  it  was  made,  but  who  was  entitled  by  law  to  be  heard  there- 
in, upon  his  application,  or  who  has  acquired,  since  the  decree  or 
order  was  made,  a  right  or  interest  which  would  have  entitled 
him  to  be  heard,  if  it  had  been  previously  acquired,  may  also 
appeal  as  prescribed  in  this  article.  The  facts  which  entitle  such 
person  to  appeal,  must  be  shown  by  an  affidavit  which  must  be  filed 
with  the  notice  of  appeal."  81 


77  Rev.  Laws  1910,  §  5264. 

78  Rev.  Laws  1910,  §  5265. 

79  Rev.  Laws  1910,  §  5277. 


80  Rev.  Laws  1910,  §  6502. 
61  Rev.  Laws  1910,  §  6503. 


(43) 


§§    64-66  COURTS  AND  COURT  OFFICERS  (Ch.  1 

§  64.    When  appeal  must  be  taken 

"An  appeal  by  a  party,  or  by  a  person  interested  who  was  pres- 
ent at  the  hearing,  must  be  taken  within  ten  days,  and  an  appeal 
by  a  person  interested,  who  was  not  a  party  and  not  present  at 
the  hearing,  within  thirty  days  from  the  date  of  the  judgment,  de- 
cree or  order  appealed  from."  82 

§  65.    Appeal  how  taken 

"The  appeal  must  be  made : 

"First.  By  filing  a  written  notice  thereof  with  the  judge  of  the 
county  court,  stating  the  judgment,  decree,  or  order  appealed  from, 
or  some  specific  part  thereof,  and  whether  the  appeal  is  on  a  ques- 
tion of  law,  or  of  fact,  or  of  both,  and,  if  of  law  alone,  the  particular 
grounds  upon  which  the  party  intends  to  rely  on  his  appeal;  and, 

"Second.  By  executing  and  filing  within  the  time  limited  in  the 
preceding  section,  such  bond  as  is  required  in  the  following  sections. 
It  shall  not  be  necessary  to  notify  or  summon  the  appellee  or  re- 
spondent to  appear  in  the  district  court,  but  such  respondent  shall 
be  taken  and  held  to  have  notice  of  such  appeal  in  the  same  man- 
ner as  he  had  notice  of  the  pendency  of  the  proceedings  in  the  coun- 
ty court."  8S 

This  statute  may  be  complied  with  by  dictating  into  the  record 
the  notice  of  appeal,  in  open  court,  in  the  presence  of  appellee  and 
his  counsel,  and  by  executing  and  filing  the  required  appeal  bond 
within  ten  days.84  A  motion  for  new  trial  is  not  required  to  confer 
jurisdiction  upon  the  district  court.88 

The  term  "civil  causes,"  or  "civil  cases,"  as  used  in  the  statute 
and  Constitution,  does  not  include  matters  within  the  probate 
jurisdiction  of  the  county  court.86 

§  66.    Appeal  bond 

"The  appeal  bond  shall  be  in  such  sum  as  the  judge  of  the  county 
court  shall  require  and  deem  sufficient,  with  at  least  two  suffi- 
cient sureties  to  be  approved  by  the  judge,  conditioned  that  the 
appellant  will  prosecute  his  appeal  with  due  diligence 'to  a  deter- 

82  Rev.  Laws  1910,  §  6504. 

83  Rev.  Laws  1910,  §  6505. 

8  *  In  re  Tubbee's  Estate,  48  Okl.  410,  149  P.  1120. 
86  Welch  v.  Barnett,  34  Okl.  166,  125  P.  472. 
*«  Welch  v.  Barnett,  34  Okl.  166,  125  P.  472. 

(44) 


Art.  1)  COURTS  AND  JUDGES  §§  66-67 

mination,  and  will  abide,  fulfill  and  perform  whatever  judgment, 
decree  or  order  may  be  rendered  against  him  in  that  proceeding 
by  the  district  court,  and  that  he  will  pay  all  damages  which  the  op- 
posite party  may  sustain  by  reason  of  such  appeal,  together  with  all 
costs  that  may  be  adjudged  against  him."  87 

The  appeal  bond  required  on  appeal  from  the  county  court  to  the 
district  court  in  a  probate  proceeding  is  required  not  only  to  pro- 
tect the  rights  of  the  appellee,  but  also  on  the  ground  of  public 
policy  and  for  other  reasons.88 

An  appeal  bond  required  by  statute  cannot  be  waived.89 

§  67.    Stay  of  execution 

"If  the  judgment,  decree  or  order  appealed  from  be  for,  or  di- 
rect, the  payment  of  money,  or  the  delivery  of  any  property,  or 
grant  leave  to  issue  an  execution,  the  appeal  shall  not  stay  the 
execution  thereof,  unless  the  appeal  bond  be  furthermore  condition- 
ed to  the  effect  that  if  the  judgment,  decree  or  order,  or  any  part 
thereof  be  affirmed,  or  the  appeal  be  dismissed,  the  appellant  shall 
pay  the  sum  so  directed  to  be  paid  or  levied,  or,  as  the  case  may  re- 
quire, shall  deliver  the  property  so  directed  to  be  delivered,  or  the 
part  thereof  as  to  which  the  judgment,  decree  or  order  shall  be  af- 
firmed." 90 

"  Rev.  Laws  1910,  §  6506. 

ss  Adair  v.  Montgomery  (Okl.)  176  P.  911 ;    Rev.  Laws  1910,  §§  6504,  6505. 

An  administrator  who  appeals  from  an  order  of  removal  does  not  act  in 
his  representative  capacity,  so  as  to  be  within  Gen.  St.  1889,  par.  2977,  provid- 
ing that  "no  executor  or  administrator  shall  be  required  to  enter  into  a  bond 
to  entitle  him  to  appeal."  Coutlet  v.  Atchison,  T.  &  S.  F.  R.  Co.,  52  P.  68, 
59  Kan.  772 ;  Erlanger  v.  Danielsoh,  26  P.  505,  88  Cal.  480 ;  Mallory's  Estate 
v.  Burlington  &  M.  R.  Co.,  36  P.  1059,  53  Kan.  557. 

Administrator,  appealing  to  district  court  from  probate  court's  order 
charging  him  with  interest  on  certain  funds  and  deducting  such  charges 
from  an  allowance  of  compensation  and  directing  distribution  of  estate,  is 
required,  by  Gen.  St.  1915,  §  4678,  to  give  a  bond.  In  re  Baird's  Estate,  102 
Kan.  317,  169  P.  1149. 

89  The  appeal  bond  required  on  appeal  from  county  court  to  district  court 
in  a  probate  proceeding  is  jurisdictional,  and,  without  a  statutory  provision, 
cannot  be  waived  by  court  or  parties.    Adair  v.  Montgomery  (Okl.)  176  P.  911. 

Where  a  case  is  tried  in  the  probate  court,  and  judgment  rendered  for 
plaintiff,  and  defendant  attempts  to  appeal,  without  giving  an  appeal  bond, 
and,  after  the  transcript  of  the  proceedings  in  the  probate  court  is  filed  in 
the  district  court,  plaintiff  makes  a  timely  motion  to  dismiss  the  appeal 

90  Rev.  Laws  1910,  §  6507. 

(45) 


§§    67-68  COURTS  AND  COURT  OFFICERS  (Ch.  1 

-'Xo  proceeding  to  reverse,  vacate  or  modify  any  judgment  or 
final  order  of  a  justice  of  the  peace  shall  operate  as  a  stay  of  execu- 
tion, unless  the  clerk  of  the  district  or  county  court,  in  which  such 
proceeding  is  commenced,  shall  take  a  written  undertaking  to  the 
defendant  in  error,  executed  on  the  part  of  the  plaintiff  in  error, 
by  one  or  more  sureties,  to  be  approved  by  the  clerk,  to  the  effect : 

"First.  When  the  judgment  directs  the  payment  of  money,  that 
the  plaintiff  will  pay  all  costs  which  have  accrued  or  may  accrue  in 
such  proceedings  in  error,  together  with  the  amount  of  any  judg- 
ment that  may  be  rendered  against  the  plaintiff  in  error,  either  upon 
and  after  the  affirmance  thereof  in  the  district  or  county  court,  or 
on  the  further  trial  of  the  case  in  such  court,  after  the  judgment  of 
the  court  below  shall  have  been  set  aside  or  reversed. 

"Second.  When  the  judgment  directs  the  delivery  of  the  pos- 
session of  lands  or  tenements  by  the  plaintiff  in  error,  he  will  not 
commit  or  suffer  to  be  committed  any  waste  thereon;  and  if  the 
judgment  be  affirmed  by  the  court  above  or  if  judgment  be  rendered 
against  the  plaintiff  upon  further  trial  of  the  case,  after  the  judg- 
ment of  the  court  below  shall  have  been  set  aside  or  reversed,  that 
he  will  pay  double  the  value  of  the  use  and  occupation  of  the  prop- 
erty, from  the  date  of  the  undertaking  until  the  delivery  of  the  prop- 
erty, pursuant  to  the  judgment,  and  all  damages  and  costs  that  may 
be  awarded  against  him."  91 

On  an  appeal  staying  proceedings,  the  subject-matter  involved  is 
removed  from  the  jurisdiction  of  the  trial  court  until  the  appeal  has 
been  determined.92 

§  68.    Commitment — How  stayed 

"An  appeal  from  any  judgment,  decree  or  order  directing  the 
commitment  of  any  person,  does  not  stay  the  execution  thereof,  un- 
less the  appeal  bond  be  also  to  the  effect  that  if  the  judgment,  de- 

for  the  reason  that  no  appeal  bond  was  given  to  effectuate  the  appeal,  and 
such  motion  is  overruled,  and  the  parties  are  required  to  go  to  trial,  any 
appearance  for  the  purpose  of  protecting  his  rights  on  the  trial  will  not 
amount  to  a  waiver  of  the  giving  of  an  appeal  bond,  or  give  the  court  the 
right  to  try  and  determine  such  cause.  Vowell  v.  Taylor,  58  P.  944,  8  Okl.  625. 

yi  Rev.  Laws  1910,  §  5256. 

>2  Burnett  v.  Jackson,  111  P.  194,  27  Okl.  275.  A  county  court  has  no  ju- 
risdiction pending  an  appeal  to  the  district  court  from  an  order  transferring 
a  guardianship  proceeding  from  that  court  to  the  county  court  of  another 
county  under  Sess.  Laws  1910,  c.  25,  to  make  certified  copies  of  the  ordexs 

(46) 


Art  1)  COURTS  AND  JUDGES  §§  69-70 

cree  or  order  appealed  from  be  affirmed,  or  the  appeal  be  dismissed, 
the  appellant  shall,  within  twenty  days  after  such  affirmance  or  dis- 
missal, surrender  himself,  in  obedience  to  the  judgment,  decree  or 
order,  to  the  custody  of  the  sheriff  to  whom  he  was  committed.  If 
the  condition  of  such  bond  be  violated,  it  may  be  prosecuted  in  the 
same  manner  and  with  the  same  effect  as  an  administrator's  official 
bond;  and  the  proceeds  of  the  action  must  be  paid  or  distributed, 
as  directed  by  the  county  court,  to  or  among  the  persons  aggrieved, 
to  the  extent  of  the  pecuniary  injuries  sustained  by  them,  and  the 
balance,  if  any,  must  be  paid  into  the  county  treasury.93 

§  69.    Justification  of  sureties — Increased  bond 

"The  provisions  of  sections  6262  to  6280,  inclusive,  apply  to 
appeal  bonds;  and  the  respondent  may  apply  to  the  appellate  court 
or  the  judge  thereof,  upon  notice,  for  an  order  requiring  the  ap- 
pellant to  increase  the  sum  fixed  by  the  judge  of  the  county  court, 
or  to  give  additional  security ;  and  if  the  applicant  make  default  in 
giving  a  new  bond,  pursuant  to  an  order  to  increase  the  same,  or 
to  give  additional  security,  the  appeal  may  be  dismissed."  9* 

§  70.    Appeal  bond  form — Action  upon 

"Every  appeal  bond  must  be  to  the  state  of  Oklahoma;  must 
contain  the  name  and  residence  of  each  of  the  sureties  thereto,  and 
must  be  filed  in  the  county  court.  The  judge  of  the  county  court 
may,  at  any  time,  in  his  discretion,  make  an  order  authorizing 
any  person  aggrieved  to  bring  an  action  on  the  bond,  in  his  own 
name  or  in  the  name  of  the  state.  When  it  is  brought  in  the  name 
of  the  state,  the  damages  collected  must  be  paid  over  to  the  county 
court,  and  therein  distributed  as  justice  may  require."  95 

That  a  bond  on  appeal  from  a  county  court  to  the  district  court 
is  made  to  the  administrator  instead  of  to  the  state  does  not  render 
it  void  so  as  to  defeat  the  district  court's  jurisdiction.96 

and  judgments  and  transmit  the  same,  as  its  power  to  act  therein  is  sus- 
pended by  the  appeal.  Id. 

93  Rev.  Laws  1910,  §  6508. 

a*  Rev.  Laws  1910,  §  6509. 

95  Rev.  Laws  1910,  §  6510. 

9«  In  re  Barnes'  Estate,  47  Okl.  117,  147  P.  504. 

Despite  Comp.  Laws  1909,  §  5460  (Rev.  Laws  1910,  §  6510),  requiring  bond 
on  appeal  from  the  county  to  the  district  court  to  be  made  payable  to  the 

(47) 


§§    71-73  COURTS  AND  COURT  OFFICERS  (Ch.  1 

§  71.    Appeal  not  to  stay  issue  of  letters 

"An  appeal  from  the  decree  or  order  admitting  a  will  to  probate, 
or  granting  letters  testamentary,  or  letters  of  administration,  does 
not  stay  the  issuing  of  letters  where,  in  the  opinion  of  the  county 
judge,  manifested  by  an  entry  upon  the  minutes  of  the  court,  the 
preservation  of  the  estate  requires  that  such  letters  should  issue. 
But  the  letters  so  issued  do  not  confer  power  to  sell  real  property 
by  virtue  of  any  provision  in  the  will,  or  to  pay  or  satisfy  legacies 
or  to  distribute  the  property  of  the  decedent  among  the  next  of  kin, 
until  the  final  determination  of  the  appeal."  9T 

§  72.    Appeal  not  to  stay  order  revoking  letters,  etc. 

"An  appeal  from  a  decree  or  order -revoking  probate  of  a  will, 
letters  testamentary,  letters  of  administration  or  letters  of  guardian- 
ship, or  from  a  decree  or  order  suspending  or  removing  an  execu- 
tor, administrator  or  guardian,  or  removing  or  suspending  a  testa- 
mentary trustee  or  a  person  appointed  by  the  county  court,  or  ap- 
pointing an  appraiser  of  personal  property  does  not  stay  the  execu- 
tion of  the  decree  or  order  appealed  from."  88 

§  73.    Proceedings 

"The  judge  of  the  county  court  must,  within  ten  days  from  the 
filing  of  the  notice  of  appeal  and  the  giving  of  the  required  bond, 
cause  a  certified  copy  thereof  and  of  the  judgment,  decree  or  order, 
or  specific  part  thereof  appealed  from,  and  of  the  minutes,  records, 
papers  and  proceedings  in  the  case,  to  be  transmitted  to  the  clerk 
of  the  district  court  of  the  county,  to  be  filed  in  his  office;  and  the 
appeal  may  be  heard  and  determined  at  any  day  thereafter  by  said 
court,  at  any  general,  special  or  adjourned  term ;  and  if  the  appel- 
lant make  no  appearance  when  the  case  is  called  for  trial,  or  other- 
wise fail  to  prosecute  his  appeal,  the  respondent  may,  on  motion, 
have  the  appeal  dismissed,  or  may  open  the  record  and  move  for 
an  affirmance."  " 


state  of  Oklahoma,  an  appeal  bond,  otherwise  In  conformity  with  the  stat- 
ute, is  valid.  Barnett  v.  Blackstone  Coal  &  Mining  Co.,  60  Okl.  41,  158  P. 
588. 

97  Rev.  Laws  1910,  §  6511. 

98  Rev.  Laws  1910,  §  6512. 

99  Rev.  Laws  1910,  §  6513. 

(48) 


Art.  1)  COURTS  AND  JUDGES  §§74~76 

§  74.    Powers  of  the  appellate  court 

"The  plaintiff  in  the  county  court  shall  be  the  plaintiff  in  the 
district  court,  and  when  the  appeal  is  on  questions  of  law  alone  the 
appellate  court  may  reverse,  affirm  or  modify  the  judgment,  decree 
or  order,  or  the  part  thereof  appealed  from,  and  every  immediate 
order  which  it  is  authorized  by  law  to  review,  in  any  respect  men- 
tioned in  the  notice  of  appeal,  and  as  to  any  or  all  of  the  parties,  and 
it  may  order  a  new  hearing.  Upon  such  appeal,  so  much  of  the 
evidence  as  may  be  necessary  to  explain  the  grounds,  and  no  more, 
may  be  certified  into  the  appellate  court."  * 

§  75.    Trial  de  novo 

"When  the  appeal  is  on  questions  of  fact,  or  on  questions  of  both 
law  and  fact,  the  trial  in  the  district  court  must  be  de  novo,  and  shall 
be  conducted  in  the  same  manner  as  if  the  case  and  proceedings  had 
lawfully  originated  in  that  court ;  and  such  appellate  court  has  the 
same  power  to  decide  the  questions  of  fact  which  the  county  court 
or  judge  had,  and  it  may,  in  its  discretion,  as  in  suits  in  chancery, 
and  with  like  effect,  make  an  order  for  the  trial  by  jury  of  any  or 
all  the  material  questions  of  fact  arising  upon  the  issues  between 
the  parties,  and  such  an  order  must  state  distinctly  and  plainly  the 
questions  of  fact  to  be  tried."  2 

A  "trial  de  novo"  has  a  well-defined  and  generally  understood 
meaning,  and  does  not  contemplate  the  framing  of  new  and  differ- 
ent issues  in  the  appellate  court.3  Thus  on  trial  de  novo  in  the 
district  court,  on  appeal  from  the  county  court  in  probate  matters, 
the  district  court  can  render  only  such  judgment  or  make  such  or- 
der as  the  county  court  should  have  made.4 

§  76.    Penalty  for  neglect  of  county  judge  to  transmit  record 

"If  the  judge  of  the  county  court  neglect  or  refuse  to  make  or 
transmit  such  certified  copies  as  are  hereinbefore  required  to  be 

1  Rev.  Laws  1910,  §  6514. 

2  Rev.  Laws  1910,  §  6515. 

Appeal  to  district  court  from  order  of  county  court  on  questions  of  law 
and  of  fact,  gives  jurisdiction  to  determine  matter  de  novo,  and  hearing 
therein  is  not  simply  a  review  to  determine  whether  error  of  law  was  com- 
mitted in  court  'below.  In  re  Standwaitie's  Estate  (Okl.)  175  P.  542. 

Rev.  Laws  1910,  §  6501. 

3  Parker  v.  Lewis,  45  Okl.  807,  147  P.  310. 

4  Parker  v.  Lewis,  45  Okl.  807,  147  P.  310. 

HON.PL.&  PBAC.— 4  (49) 


§§  77-78 


COURTS  AND  COURT  OFFICERS 


(Ch.  1 


transmitted  to  the  clerk  of  the  district  court  in  cases  of  appeal,  he 
may  be  compelled  by  the  district  court  by  an  order  entered,  upon 
motion,  to  do  so ;  and  he  may  be  fined,  as  for  contempt,  for  any 
such  neglect  or  refusal.  A  certified  copy  of  such  order  may  be 
served  upon  the  county  judge  by  the  party  or  his  attorney."  5 


§  77. 


Dismissal  of  appeal — Effect — Costs 


"The  dismissal  of  an  appeal  by  the  district  court  is  in  effect  an 
affirmance  of  the  judgment,  decree  or  order  appealed  from;  and 
when  an  appellant  shall  have  given,  in  good  faith,  notice  of  appeal, 
but  omits,  through  mistake,  to  do  any  other  act  necessary  to  per- 
fect the  appeal  or  to  stay  proceedings,  the  appellate  court  may  per- 
mit an  amendment,  on  such  terms  as  may  be  just."  6 

"Such  appellate  court  may  award  to  the  successful  party  the  costs 
of  the  appeal ;  or  it  may  direct  that  such  costs  abide  the  event  of  a 
new  hearing,  or  of  the  subsequent  proceedings  in  the  county  court. 
In  either  case  the  costs  may  be  made  payable  out  of  the  estate  or 
fund,  or  personally  by  the  unsuccessful  party,  as  directed  by  the 
appellate  court;  or,  if  no  such  direction  be  given,  as  directed  by  the 
county  court."  7 

"If  the  county  or  district  court  affirm  a  judgment  on  petition  in 
error,  it  shall  also  render  judgment  against  the  plaintiff  in  error,  for 
five  per  cent,  upon  the  amount  due  from  him  to  the  defendant  in 
error,  unless  the  court  shall  enter  upon  its  minutes  that  there  was 
reasonable  grounds  for  the  proceedings  in  error."  8 

t 
§  28.     Enforcement  of  decree 

"When  a  judgment,  decree  or  order,  from  which  an  appeal  has 
been  taken,  is  wholly  or  partly  affirmed,  or  is  modified  by  the  judg- 
ment rendered  by  the  district  court  upon  such  appeal,  it  must  be 
enforced,  to  the  extent  authorized  by  the  latter  judgment,  by  the 
county  court,  in  like  manner  as  if  no  appeal  therefrom  had  been 
taken ;  and  the  district  court  must  direct  the  proceedings  to  be 
remitted  for  that  purpose  to  the  county  court  or  to  the  judge 
thereof."  9 


5  Rev.  Laws  1910,  §  6516. 
8  Rev.  Laws  1910,  §  6517. 
7  Rev.  Laws  1910,  §  6518. 

(50) 


8  Rev.  Laws  1910,  §  5277. 
•  Rev.  Laws  1910,  §  6519. 


Art.l)  COURTS  AND  JUDGES  §§  79~81 

§  79.    Executor's  bond  stands  in  place  of  appeal  bond 

"When  an  executor  or  administrator  who  has  given  an  official 
bond  appeals  from  a  judgment,  decree  or  order  of  the  county  court 
or  judge,  made  in  the  proceedings  had  upon  the  estate  of  which  he 
is  administrator  or  executor,  his  said  bond  stands  in  the  place  of  an 
appeal  bond,  and  the  sureties  therein  are  liable  as  on  such  appeal 
bond."  10 

§  80.    Reversal  for  error  not  to  affect  lawful  acts 

"When  the  order  or  decree  appointing  an  executor,  or  administra- 
tor, or  guardiarf,  is  reversed  on  appeal  for  error,  and  not  for  want  of 
jurisdiction  of  the  court,  all  lawful  acts  in  administration  upon  the 
estate,  performed  by  such  executor,  or  administrator  or  guardian,  if 
he  have  qualified,  are  as  valid  as  if  such  order  or  decree  had  been 
affirmed."  X1 

§  81.     Rules  of  district  court 

The  district  courts  have  authority  to  make  necessary  and  rea- 
sonable rules  governing  the  transaction  of  business  therein,  and  a 
rule  requiring  that  parties  who  desire  that  the  court  shall  state  in 
writing  its  findings  of  fact  separately  from  its  conclusions  of  law 
shall  request  the  same  at  the  commencement  of  the  trial  has  been 
held  not  unreasonable  or  illegal  in  Kansas.12 

Where  a  rule  of  the  district  court  provides  that  demurrers  and 
motions  shall  only  be  heard  on  certain  days,  the  court,  without 
agreement  of  counsel,  cannot  disregard  the  rule  and  hear  a  demur- 
rer prior  to  the  day  it  would  regularly  come  on  for  hearing.13  But 
the  rules  prescribed  must  not  be  unreasonable.1* 


10  Rev.  Laws  1910,   §  6520. 

11  Rev.  Laws  1910,  §  6521. 

12  Sehuler  v.  Collins,  65  P.  662,  63  Kan.  372. 
13Holbert  v.  Patrick   (Okl.)   176  P.  903. 

14  The  district  court  of  the  territory  of  Oklahoma  could  not  impose  a  rule 
requiring  a  party  appealing  a  case  from  the  probate  court  to  the  district 
court  to  deposit  with  the  clerk  of  the  district  court  a  specified  sum  for 
clerk's  costs  conditioned  that  on  the  failure  to  do  so  the  court  should  dis- 
miss the  appeal.  Goodwin  v.  Bickford,  93  P.  548.  20  Okl.  91,  129  Am.  St.  Rep. 
729 :  Nelson  v.  Lollar,  94  P.  176,  20  Okl.  291 ;  Stone  v.  Clogston,  105  P.  642, 
25  Okl.  162. 

(51) 


§§    82-83  COURTS  AND  COURT   OFFICERS  (Ch.  1 

DIVISION  IV. — SUPERIOR  COURTS  AND  JUDGES 

§  82.     Superior  courts  in  general 

There  is  created  and  established  by  statute  in  certain  counties  of 
this  state,  a  court  of  civil  and  criminal  jurisdiction  coextensive  with 
the  county  to  be  known  as  the  superior  court  of  such  county,  which 
shall  be  a  court  of  record  and  shall  be  held  in  the  largest  city  of 
such  county.15 

Many  of  the  superior  courts  heretofore  established  have  been 
abolished.18 

§  83.     Qualifications  of  judges — Term  of  office 

"The  said  court  shall  be  presided  over  by  a  judge  whose  quali- 
fications shall  be  the  same  as  are  required  for  district  judges  and 
who  shall  be  a  resident  of  the  county  for  which  he  shall  have  been 
elected  or  appointed.  The  regular  term  of  such  judge  shall  be  four 
years  and  he  shall  within  the  county,  have  and  exercise  all  the 
powers  of  a  district  judge  and  all  the  powers  of  a  county  judge, 
limited  to  the  jurisdiction  herein  conferred."  ir 


«  Sess.  Laws  1915,  c.  20,  §  1;   Sess.  Laws  1917,  c.  135,  §§  1-21. 

Sess.  Laws  1909,  c-  14,  art.  7,  under  which  the  superior  court  of  Pottawa- 
tomie  county  was  organized,  held  constitutional.  Parker  v.  Hamilton,  49  Okl. 
693,  154  P.  65. 

Sess.  Laws  1917,  c.  135,  §  14,  transferring  all  causes  from  district  court 
to  superior  court  of  Okfuskee  county,  created  by  act  and  prescribing  proce- 
dure, held  unconstitutional.  Diehl  v.  Crump  (Okl.)  179  P.  4,  5  A.  L.  R. 
1272. 

Section  6  of  Act  March  22,  1913,  entitled  "An  act  amending  section  1  of 
article  7  of  chapter  14  of  Session  Laws  1909,  etc."  (Laws  1913,  c.  77),  applies 
to  superior  courts  continued  by  said  act  until  January,  1915,  as  well  as  to 
those  continued  indefinitely  by  the  act.  State  v.  Superior  Court  of  Oklahoma 
County,  136  P.  424,  40  Okl.  120. 

Special  provision  has  been  made  by  statute  for  the  superior  court  of  Ok- 
mulgee  county  and  for  the  jurisdiction,  judge,  and  terms  of  court  thereof, 
and  other  matters  pertaining  thereto  (Sess.  Laws  1917,  c.  131,  §§  1-15),  as 
is  also  true  of  Creek  county  (Sess.  Laws  1917,  c.  138,  §§  1-15). 

16  Sess.  Laws  1919,  c.  116. 

The  superior  court  in  all  counties  having  a  population  in  excess  of  100,000 
according  to  the  last  federal  census  is  abolished,  and  all  causes  of  which  the 
district  court  has  jurisdiction  are  transferred  thereto  by  the  statute.  Like- 
wise all  causes  of  which  the  county  court  has  exclusive  original  jurisdiction 
are  transferred  to  such  court.  Sess.  Laws  1921,  c.  2  (S.  B.  No.  16)  §§  1-3. 

«  Sess.  Laws  1915,  c.  20,  §  3. 

(52) 


Art.  1)  COURTS  AND  JUDGES  §§  83~86 

The  term  of  an  appointee  continues  until  his  successor  can  be 
elected.18 

§  84.     Election 

At  the  general  election  of  county  officers  every  fourth  year  after 
the  year  1918,  "the  qualified  electors  of  such  county  wherein  a 
superior  court  has  been  established,  *  *  *  .shall  elect  a  judge 
of  said  court  for  such  county  to  serve  from  the  second  Monday  of 
the  following  January  until  the  second  Monday  of  January  four 
years  thereafter  and  until  his  successor  shall  be  elected  and  quali- 
fied." 19 

§  85.     Procedure — Juries — Appeals 

"The  procedure  in  said  court  shall  follow  the  procedure  that  is 
or  may  be  provided  for  the  district  court.  The  juries  for  said  court 
shall  be  selected  in  the  same  manner  as  juries  for  the  district  court, 
and  the  jury  commissioners  of  all  counties  in  which  a  superior  court 
is  created  by  operation  of  this  act,  whenever  they  meet  to  make 
jury  lists  for  the  district  court  shall  make  an  additional  certified 
list  of  jurors  of  the  same  number  as  for  the  district  court  and  mark 
the  same  'Jury  List  No.  3,  for  the  Superior  Court/  and  shall  de- 
liver the  same  to  the  court  clerk,  and  said  clerk  and  the  sheriff  of 
the  county  shall  select  from  said  list  the  jurors  for  the  superior 
court  in  the  same  manner  as  for  the  district  court,  juries  in  said 
court  shall  be  composed  of  the  same  number  of  men  of  the  same 
qualifications  as  in  the  district  court,  and  all  laws  relative  to  juries 
and  jurors  for  district  courts  shall  be,  and  are  hereby  made  ap- 
plicable to  the  said  superior  courts.  Appeals  from  said  court  shall 
be  taken  to  the  Supreme  Court  of  the  state  and  to  the  Criminal 
Court  of  Appeals  of  the  state,  in  the  same  manner  as  is  now  or 
may  hereafter  be  provided  by  law  for  taking  appeals  from  the  dis- 
trict court  to  said  appellate  courts."  20 

§  86.     Court  stenographer 

"The  judge  of  said  court  shall  appoint  a  stenographer  whose 
fees  and  compensation  shall  be  the  same  as  provided  by  law  for 
like  services  rendered  by  the  stenographer  for  the  district  court,  and 
he  shall  be  paid  by  the  county  in  which  the  court  is  located,  and 

18  State  v.  Breckinridge,  126  P.  806,  34  Okl.  649. 

«  Sess.  Laws  1915,  c.  20,  8  5.  20  Sess.  Laws  1915,  c.  20,  §  6. 

(53) 


gg    87-89  COURTS  %AND  COURT   OFFICERS  (Ch.  I 

the  court  clerk  shall  tax  the  same  fee  for  stenographers  as  is  pro- 
vided by  law  for  the  payment  of  stenographers  in  district  courts."  21 

§  87.     Sheriffs — County  attorneys 

"The  county  attorney  and  sheriff  of  every  county  wherein  such 
a  court  shall  be  established  shall  appear  in  said  court  and  therein 
perform  all  services  for  the  state  and  county  in  the  same  manner, 
and  exercise  the  same  powers  as  provided  by  law  in  relation  to  the 
district  court  and  processes  issued  therefrom."  22 

§  88.     Judge's  salary 

"The  judge  of  the  superior  court  of  each  county  shall  receive  as 
full  compensation  the  following  salary ;  in  counties  having  a  popu- 
lation of  not  to  exceed  fifty  thousand,  the  sum  of  two  thousand  eight 
hundred  dollars  per  annum ;  and  in  counties  in  excess  of  fifty  thou- 
sand in  population,  the  sum  of  three  thousand  dollars  per  annum. 
The  salary  of  such  superior  judge  shall  be  paid  out  of  the  court 
fund  of  the  county  in  which  said  superior  court  is  located."  23 

§  89.     Transfer  of  causes 

"The  district  court  or  judge  thereof  in  any  county  wherein  a 
superior  court  exists  may,  in  his  discretion,  at  any  time  transfer 
any  cause  pending  and  undetermined  therein  to  the  superior  court 
of  said  county.  The  superior  court  or  judge  thereof  may,  at  any 
time,  in  his  discretion,  transfer  to  the  district  court  of  said  county 
any  cause  pending  and  undetermined  therein  which  may  be  within 
the  jurisdiction  of  the  district  court.  The  county  court  or  judge 
thereof,  may  at  any  time,  in  his  discretion,  transfer  any  cause  pend- 
ing therein,  except  probate  matters,  to  the  superior  court.  Upon 
such  transfer  being  made,  such  cause  shall  stand  for  trial  in  the 
court  to  which  it  has  been  so  transferred  as  if  it  had  been  original- 
ly filed  therein,  and  in  such  cases  the  court  clerk  shall  transfer  the 
original  files  to  the  court  to  which  said  cause  has  been  so  transfer- 
red." 2* 

21  Sess.  Laws  1915,  c.  20,  §  8. 
.  22  Sess.  Laws  1915,  c.  20,  §  9. 

23  Sess.  Laws  1915,  c.  20,  §  10. 

2*  Sess.  Laws  *921,  c.  250  (H.  B.  No.  22)  §  1,  amending  Sess.  Laws  1915, 
c.  20,  §  lii. 

Laws  1915,-  c.  20,  validating  all  proceedings  of  district  courts  in  causes 
transferred  thereto  under  Laws  1913,  c.  77,  validated  transfer  of  a  cause  from 
superior  court  to  district  court  having  concurrent  jurisdiction  and  swbso 

(54) 


Art.  1)  COURTS  AND  JUDGES  §§    90~91 

DIVISION  V. — COUNTY  COURTS  AND  JUDGES 

§  90.     Procedure— Seal 

"For  the  trial  of  all  civil  and  criminal  cases  in  the  county  court 
the  pleadings,  practice  and  procedure,  both  before  and  after  judg- 
ment, shall  be  the  same  as  that  of  the  district  court,  except  where 
special  statutory  proceedings  are  prescribed."  25 

The  seal  of  the  probate  court,  in  the  absence  of  legislation,  be- 
came the  official  seal  of  the  county  court.26 

§  91.     Terms  of  court 

"In  each  county,  commencing  on  the  first  Mondays  of  January, 
April,  July  and  October  of  each  year,  except  as  otherwise  herein 
provided,  county  court  shall  convene  at  the  county  seat  and  con- 
tinue in  session  so  long  as  business  may  require :  Provided,  that 
said  courts  shall  always  be  open  and  in  session  for  the  transaction 
of  all  probate  business  in  their  respective  counties."  27 

"In  counties  where  it  may  be  provided  by  law  for  such  court  to 
be  held  at  a  place  or  places  other  than  the  county  seat,  such  court 
shall  convene  on  the  first  Mondays  of  January,  April,  July  and  Oc- 
tober of  each  year,  at  the  county  seat,  and  remain  in  session  for  a 
period  of  three  weeks,  find  may  then,  by  proper  order  of  said 
court,  be  adjourned  to  such  time  as  the  judge  thereof  may  deem 
proper:  Provided,  that  the  same  shall  not  conflict  with  the  term 
of  said  court  provided  for  at  any  other  place  in  said  county;  and 
provided,  further,  that  said  term  of  court  cannot  be  adjourned  to 
resume  at  a  later  date  than  eight  weeks  from  the  date  of  entering 
the  order  of  such  adjournment."  28 

"If  there  is  only  one  place  other  than  the  county  seat  at  which 
it  is  provided  by  law  for  holding  terms  of  the  county  court,  th^ 

quent  proceedings  therein.     Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Austin,  63  Okl. 
169,  163  P.  517,  L.  R.  A.  1917D,  666. 

A  party  to  a  civil  action  pending  in  the  superior  court  who  seeks  to  re- 
move the  cause  to  the  district  court  under  section  6  of  the  act  of  March  22, 
1913  (Laws  1913,  c.  77),  must,  under  Act  March  22,  1911  (Laws  1910-11,  c. 
121),  amending  Laws  1909,  c.  14,  art.  7,  §  10,  file  his  motion  for  such  trans- 
fer before  the  cause  is  set  for  trial  -in  the  superior  court.  State  v.  Superior 
Court  of  Oklahoma  County,  136  P.  424,  40  Okl.  120. 

25  Rev.  Laws  1910,  §  1821. 

26  Stewart  v.  State,  105  P.  374,  3  Okl.  Cr.  618. 

27  Rev.  Laws  1910,  §  1823.  28Rev.  Laws  1910,  §  1824. 

(55) 


§    91  COURTS  AND  COURT  OFFICERS  (Ch.  1 

terms  of  said  court  at  such  place  shall  commence  on  the  first  Mon- 
days of  February,  May,  August  and  November  of  each  year,  and 
continue  in  session  for  the  period  of  three  weeks,  if  the  public  busi- 
ness requires  it."  29 

"If  there  are  two  places  in  the  county  other  than  the  county  seat 
at  which  it  is  provided  by  law  for  holding  terms  of  the  county 
court  in  addition  to  the  county  seat,  the  terms  of  court  shall  be 
held  at  said  place  nearer  the  county  seat  as  aforesaid,  to  wit :  On 
the  first  Mondays  in  February,  May,  August  and  November  of  each 
year  and  continue  in  session  as  aforesaid.  At  the  other  place  in  said 
county  where  said  county  court  is  to  be  held  other  than  at  the  coun- 
ty seat,  terms  of  courts  shall  be  held  commencing  on  the  first 
Mondays  of  March,  June,  September  and  December  of  each  year, 
and  continue  in  session  for  the  period  of  three  weeks  each  time,  or 
so  long  as  the  public  business  may  require."  30 

The  statute  merely  commits  to  the  sound  discretion  of  the  county 
court  the  power  to  adjourn  the  sessions  of  that  court  from  time  to 
time  as  business  may  require,  and  gives  no  power  to  prolong  the 
term.  An  adjournment  of  the  regular  term  at  the  county  seat 
may  be  had  to  a  day  later  than  an  intervening  term  provided  for 
by  law  at  some  other  place.31 

Adjournment  of  the  regular  term  without  fixing  in  the  order  of 
adjournment  any  time  at  which  the  court  shall  reconvene  pre- 
cludes the  court  from  again  convening  until  the  time  fixed  by  law 
for  the  next  regular  session.32 

Where  terms  of  court  are  fixed  by  law,  and  the  court  fails  to 

29  Rev.  Laws  1910,  §  1825. 

30  Rev.  Laws  1910,  §  1826. 

Act  of  the  Legislature  of  1909,  House  Bill  No.  460  (Laws  1909,  c.  14,  art. 
20),  providing  for  holding  the  county  court  at  Prague,  in  Lincoln  county, 
uses  the  words  "term"  and  "session"  interchangeably.  Rakowski  v.  Wagoner, 
103  P.  632,  24  Okl.  282. 

Comp.  Laws  1909,  §§  2008-2011  (Rev.  Laws  1910,  §§  1824-1826),  inclusive, 
fixing  the  terms  of  the  county  courts  in  the  several  counties  of  the  state,  em- 
braces all  the  law  on  the  subject  and  provides  uniformity  in  the  terms  of 
such  court  in  the  several  counties,  and  repeals  Act  March  12,  1909  (Laws 
1909,  c.  14,  art.  13),  fixing  the  terms  of  county  court  of  Wagoner  county  at 
Coweta.  In  re  James,  111  P.  947,  4  Okl.  Cr.  94 ;  In  re  Williams,  111  P.  950,. 
4  Okl.  Cr.  101 ;  In  re  Nichols,  111  P.  950,  4  Okl.  Cr.  102. 

81  Tucker  v.  State,  139  P.  998,  10  Okl.  Cr.  565. 

82  Baker  v.  Newton,  112  P.  1034,  27  Okl.  436. 

(56) 


Art.  1)  COURTS  AND  JUDGES  §§  91-93 

convene  at  the  time,  the  parties  cannot,  by  agreement,  confer  ju- 
risdiction to  render  a  judgment  at  another  time.83 

Where  proper  officers  assemble  at  the  proper  place,  but  at  a  time 
not  authorized  by  law,  they  are  not  a  court,  and  any  judicial  pro- 
ceedings then  had  which  can  be  had  only  in  term  time  are  void.34 

The  county  courts  are  always  in  session  for  the.  transaction  of 
probate  business,  and  the  part  of  the  statute  providing  for  terms 
of  county  courts  has  no  application  to  probate  jurisdiction  of  the 
courts.35 

Where  the  general  term  of  the  county  court  has  been  once  regu- 
larly convened  on  the  day  fixed  by  law,  it  continues  until  the  time 
fixed  by  law  for  the  next  succeeding  term,  unless  previously  ad- 
journed sine  die.36 

A  general  term  of  court,  when  regularly  convened,  can  expire 
only  by  operation  of  law  or  by  adjournment  sine  die.  It  will  not 
expire  by  law  until  tKe  first  day  of  the  next  general  term.37  Failure 
of  the  judge  to  appear  and  hold  a  session  on  that  day  does  not  re- 
sult in  lapse  of  the  term.38 

§  92.     Proceedings  in  vacation — Out  of  court 

A  judgment  in  a  civil  action  at  a  time  when  the  court  is  not  le- 
gally in  session,  is  void  for  want  of  jurisdiction.39 

"A  judge  of  the  county  court,  as  contradistinguished  from  the 
county  court,  may  exercise  out  of  court  all  the  powers  expressly 
conferred  upon  him  as  judge."  40 

§  93.     Calendar 

"The  county  judge  shall  on  the  first  day  of  each  term  prepare  a 
calendar  of  the  cases  standing  for  trial  at  said  term,  placing  the 
causes  on  said  calendar  in  the  order  in  which  the  same  are  number- 
ed on  the  docket  and  setting  the  cases  for  trial  in  such  order  upon 
convenient  days  during  said  term ;  and  the  provisions  of  the  chap- 

33  American  Fire  Ins.  Co.  v.  Pappe,  43  P.  1085,  4  Okl.  110. 
3*  In  re  James,  111  P.  947,  4  Okl.  Or.  94 ;  In  re  Williams,  111  P.  950,  4  Okl. 
Cr.  101 ;  In  re  Nichols,  111  P.  950,  4  Okl.  Or.  102/ 

35  Southern  Surety  Co.  v.  Chambers  (Okl.)  180  P.  711. 

36  Tucker  v.  State,  139  P.  998,  10  Okl.  Cr.  565. 

37  Brown  v.  State,  11  Okl.  Cr.  498,  148  P.  181. 

38  St.  Louis  &  S.  F.  R.  Co.  v.  James,  128  P.  279,  36  Okl.  196. 

39  American  Fire  Ins.  Co.  v.  Pappe,  4  Okl.  110,  43  P.  1085. 
*°  Rev.  Laws  1910,  §  6192. 

(57) 


§§    94-98  COURTS  AND  COURT  OFFICERS  (Gl.  1 

ter  on  civil  procedure  relative  to  the  docket  in  district  courts  shall 
so  far  as  they  are  applicable  apply  to  said  calendar."  41 

§  94.     Stenographer 

"The  judge  of  the  county  court  may  appoint,  in  writing,  when- 
ever in  his  judgment  it  will  expedite  public  business,  a  shorthand 
reporter,  to  be  known  as  'County  Stenographer,'  who  shall  be  ex 
officio  deputy  clerk  of  the  county  court,  and  who  shall  possess  the 
same  qualifications  in  the  art  of  stenography  as  is  required  of  such 
officer  in  the  district  court."  42 

§  95.    Duties 

"It  shall  be  the  duty  of  the  county  stenographer,  under  the 
direction  of  the  county  judge,  to  take  down  in  shorthand  the  oral 
testimony  of  witnesses,  the  rulings  of  the  court,  the  objections  made, 
and  the  exceptions  taken  during  the  trial  of  all  civil  and  criminal 
cases,  and  also  such  other  matters  as  the  court  shall  order."  *3 

§  96.    Oath  and  tenure  of  office 

"County  stenographers  shall  hold  their  offices  at  the  pleasure  of 
the  county  judge  appointing  them,  and  their  official  oath  shall  be 
filed  in  the  office  of  the  county  court  and  be  recorded  in  the  journal 
of  said  court."  4* 

§  97.    Fees  for  making  transcripts 

"The  judge  of  the  county  court  may,  upon  the  application  of  ei- 
ther party,  under  the  same  terms  and  conditions  as  prescribed  by 
law  in  the  district  court,  direct  such  reporter  to  make  out  and  file 
with  the  clerk  of  said  court  a  transcript  of  his  shorthand  notes. 
The  party  ordering  the  transcript  shall  pay  for  the  same  at  the  same 
price  and  under  the  same  terms  and  conditions  as  for  like  services 
in  the  district  court,  but  all  such  fees  shall  be  paid  into  the  county 
treasury  to  the  credit  of  the  court  fund."  45 

§  98.     Ex  officio  court  clerk 

"The  county  stenographer  shall  occupy  and  maintain  his  office  in 
the  office  of  the  judge  of  the  county  court,  and  when  such  stenog- 

41  Rev.  Laws  1910,  §  1827. 

42  Rev.  Laws  1910,  §  1833. 

Stenographer  as  deputy  clerk,  see  Sess.  Laws  19}5,  p.  41,  §  l. 

43  Rev.  Laws  1910,  §  1834.  <s  Rev    Laws  1910  '§  1836 
14  Rev.  Laws  1910,  §  1835. 

(58) 


Art.  1)  COURTS  AND  JUDGES  §§  99-103 

rapher  is  not  engaged  in  reporting  cases  or  making  transcript,  it 
shall  be  his  duty,  under  the  direction  of  the  judge,  to  perform  the 
the  duties  of  a  clerk  in  the  county  qourt."  46 

§  99.    Compensation 

County  court  stenographers  shall  receive  a  salary  to  be  paid 
by  the  county  of  not  less  than  $100  nor  more  than  $125  per  month, 
to  be  fixed  by  the  county  board  of  commissioners.47 

§  100.     Fees — Record 

"The  judge  of  the  county  court  shall  keep  an  account  of  all 
fees  for  services  rendered  by  him,  in  a  book  provided  for  that  pur- 
pose, showing  the  title  or  style  of  the  case  or  proceedings  in  which 
such  services  were  rendered,  or  the  name  of  the  person  for  whom 
rendered,  the  amount  charged,  and  the  amount  received,  from  whom 
and  for  what  purpose,  and  the  date  thereof.  The  footings  for  each 
quarter,  at  the  close  thereof,  shall  be  legibly  and  correctly  entered 
in  such  records,  showing  the  amount  received  and  the  amount 
charged."  48 

§  101.    Report  of 

"The  judge  of  the  county  court  shall,  on  the  first  Mondays  of 
January,  April,  July  and  October  of  each  year,  make  out  and  pre- 
sent to  the  board  of  county  commissioners  a  detailed  statement  of 
all  fees  received  by  him  during  the  preceding  quarter,  together  with 
the  amount  of  fees  earned,  which  remain  unpaid,  which  report  shall 
be  made  under  oath  and  filed  with  the  county  clerk."  40 

§  102.    Fees  paid  to  treasurer 

"The  judges  of  the  county  courts  of  the  several  counties  shall,  at 
the  time  of  making  their  quarterly  reports,  pay  into  the  county 
treasury  all  moneys  received  by  them  as  fees  during  the  three 
months  immediately  preceding  the  date  of  filing  said  report."  50 

§  103.     Special  court  towns 

Special  court  towns  are  provided  for  by  statute,  where  terms 
of  county  court  shall  be  held  in  various  counties  in  addition  to  the 

4  6  Rev.  Laws  1910,  §  1837. 

47  Sess.  Laws  1921,  c.  25   (S.  B.  No.  87),  §  3;    Rev.  Laws  1910,  §  1838,  re- 
pealed. 

48  Rev.  Laws  1910,  §  1842.  »<>  Rev.  Laws  1910,  §  1844. 
*9  Rev.  Laws  1910,  §  1843. 

(59) 


§§    104-105  COURTS  AND  COURT  OFFICERS  (Ch.  1 

county  seat,  and  in  such  counties  the  jurisdiction  of  the  county 
courts  in  the  different  towns  is  fixed  and  provision  made  for  sep- 
arate jury  lists.51 

§  104.    Judge — Term  of  office — Qualification 

"There  is  hereby  established  in  each  county  in  this  state  a  county 
court,  which  shall  be  a  court  of  record ;  and,  at  the  election  to  rati- 
fy this  Constitution,  there  shall  be  elected  in  each  county  a  county 
judge,  who  shall  hold  his  office  until  the  close  of  the  day  next  pre- 
ceding '  the  second  Monday  in  January,  nineteen  hundred  and 
eleven;  and  thereafter  the  term  of  office  of  the  county  judge  shall 
be  two  years,  and  he  shall  be  elected  at  each  biennial  general  elec- 
tion. The  county  judge  shall  be  a  qualified  voter  and  a  resident 
of  the  county  at  the  time  of  his  election,  and  a  lawyer  licensed  to 
practice  in  any  court  of  record  of  the  state.  The  County  judge  shall 
be  judge  of  the  county  court."  5a 

§  105.    To  give  bond 

"The  county  judge,  before  entering  upon  the  duties  of  his  office, 
shall  enter  into  a  bond  to  the  state  of  Oklahoma  for  the  use  and 
benefit  of  the  county,  in  a  sum  to  be  fixed  by  the  board  of  county 
commissioners,  which  shall  not  be  less  than  three  thousand  dol- 
lars nor  more  than  ten  thousand  dollars,  to  be  approved  by  the 
board  of  county  commissioners,  conditioned  that  he  will  faithfully 
discharge  all  the  duties  required  of  him  by  this  chapter,  and  for 
the  payment  into  the  county  treasury  of  all  moneys  that  may  come 
into  his  hands  by  virtue  of  his  office  as  such  county  judge."  53 

"Rev.  Laws  1910,  c.  21,  art.  2,  §§  1845-2050;  Sess.  Laws  1910-11,  p.  57, 
§§  1-5,  p.  58,  §§  6-8,  p.  59,  §§  1,  2,  p.  60,  §§  3,  4,  p.  61,  §§  5-7,  p.  62,  §§  8,  9, 
p.  63,  §§  1-3,  p.  64,  §§  4-7,  p.  67,  §§  1,  2,  p.  68,  §§  3-6,  p.  69,  §  7,  p.  137,  §§  1-4, 
p.  138,  §§  5-7,  p.  141,  p.  239,  §§  1-4,  p.  240,  §§  5-7,  p.  241,  §§8,  9 ;  Sess,  Laws 
1913,  p.  18,  §§  1,  2,  p.  69,  g  1,  p.  70,  §§  2-3,  5,  p.  71,  §§  6-8,  p.  72,  §  9,  p.  134, 
§§  1-3,  p.  135,  §§  4,  5,  p.  136,  §§  6,  7,  p.  180,  §§  1-3,  p.  181,  §§  4-6,  p.  390,  §§  1,  2, 
p.  392,  §§  1,  2 ;  Sess.  Laws  1915,  p.  15,  §  1,  p.  16,  §  2,  p.  62,  §§  1,  2,  p.  63,  §§  4-7, 
p.  64,  m  8,  9,  p.  70,  §  1,  p.  71,  §§  2-4,  p.  72,  §§  5-7,  p.  109,  §§  1,  2,  p.  153,  §§  1-3, 
p.  164,  §  1,  p.  165,  §§  2,  3,  p.  166,  §§  4-6,  p.  408,  §§  1-3,  p.  433,  §§  1-3,  p.  570,  §  1, 
p.  571,  §§  1-5,  p.  572,  §§  6-9,  p.  573,  §§  10,  11,  p.  626,.  §  1 ;  Sess.  Laws  1917,  p. 
187,  §  1,  p.  188,  §§  1,  2,  p.  189,  §§  1-3,  p.  215,  §  1,  p.  216,  S§  2-5,  p.  217,  §  6, 
p.  222,  §  1,  p.  223,  §§  2-6,  p.  224,  §§  7-9. 

<*2  Const.  Okl.  art.  7,  §  11. 

"a  Rev.  Laws  1910,  §  1822. 

(60) 


Art.  1)  COURTS  AND  JUDGES  §§    106-110 

§  106.    Office  and  records 

"The  judge  of  the  county  court  shall  keep  his  office  at  the  county 
seat,  in  such  rooms  as  the  county  may  provide,  and  his  office  shall 
be  kept  open  at  reasonable  hour's.  He  shall  safely  keep  all  the 
papers,  books  and  records  of  his  office  or  relating  to  any  case  of 
business  of  the  county  court  or  before  him  as  judge  thereof,  and 
receive  and  pay  out,  according  to  law,  any  money  which  by  law 
may  be  payable  to  him.  The  county  shall  provide  for  such  tables, 
desks,  cases  for  books  of  record  and  other  property  or  furniture  re- 
quired for  his  office."  54 

§  107.    Practice  prohibited 

"A  judge  of  the  county  court  shall  not  be  counsel  or  attorney  in 
any  civil  action  for  or  against  any  executor,  administrator,  guar- 
dian, trustee,  minor  or  other  person  over  whom  or  whose  accounts 
he  has  or  by  law  would  have  jurisdiction,  whether  such  action  re- 
late to  the  business  of  the  estate  or  not."  5* 

§  108.     Temporary  county  judge 

"Whenever  the  county  judge  of  any  county  is  unable  to*  perform 
the  duties  of  his  office  because  of  illness,  absence  from  the  county, 
or  other  disqualification,  a  temporary  judge  may  be  chosen  by  the 
bar  of  the  county  and  such  temporary  judge  so  chosen  shall  have 
the  same  authority  and  the  same  power  as  the  regular  judge."  56 

This  statute  and  the  Constitution  provide  for  a  judge  pro  tempore 
in  a  special  proceeding.57 

§  109.    How  elected 

"The  clerk  of  the  county  court  shall  fix  the  time  for  the  election 
of  such  temporary  county  judge,  and  shall  serve  a  written  notice  on 
each  member  of  the  bar  of  the  county  at  least  forty-eight  hours 
prior  to  such  election.  Such  election  shall  be  by  ballot  and  shall 
be  under  the  general  direction  of  said  clerk  of  the  county  court."  5S 

§  110.    Fee  when  affidavit  of  bias  made 

"Whenever  a  temporary  judge  is  chosen  to  sit  as  a  trial  judge 
in  any  case  on  account  of  bias  or  prejudice  of  the  regular  judge,  the 

B*  Rev.  Laws  1910,  §  1828. 

65  Rev.  Laws  1910,  §  1829. 

66  Rev.  Laws  1910,  §  1830. 

67  Hengst  v.  Burnett,  40  Okl.  42,  135  P.  1062. 

68  Rev.  Laws  1910,  §  1831. 

(61) 


§§    110-111  COURTS  AND  COURT   OFFICERS  (Ch.  1 

party  making  the  affidavit  under  the  law  shall  be  charged  a  fee  of 
twenty-five  dollars,  to  be  taxed  as  costs  in  the  case;  and  in  no 
event  shall  the  county  be  liable  for  more  than  one-half  of  such 
costs."  59 

Courts  should  use  reasonable  discretion  in  giving  time  to  pay 
such  costs,  or  file  a  bond  for  the  same.60 

§  111.     County  judge — County  attorney — Salary 

The  statute  providing  that  "the  county  judge  and  county  attor- 
ney of  each  county  shall  receive  as  full  compensation  the  follow- 
ing salaries  in  counties  having  a  population  of  not  exceeding  7,000, 
the  sum  of  $1,350.00  each  per  annum ;  in  counties  having  a  popula- 
tion of  over  7,000  and  not  exceeding  10,000,  the  sum  of  $1,500.00 
each  per  annum;  and  in  addition  to  the  foregoing,  in  all  counties 
in  excess  of  10,000  inhabitants  and  not  exceeding  20,000  inhabitants, 
the  sum  of  $50.00  for  each  additional  1,000;  in  addition  to  the  fore- 
going, in  counties  in  excess  of  20,000  and  not  to  exceed  30,000  in- 
habitants, the  sum  of  $25.00  for  each  additional  1,000;  in  addition 
to  the  foregoing,  in  counties  of  30,000  inhabitants  and  not  exceed- 
ing 40,000  inhabitants  the  sum  of  $15.00  for  each  additional  1,000; 
in  addition  to  the  foregoing,  in  counties  of  40,000  inhabitants  and 
not  exceeding  50,000  inhabitants  the  sum  of  $10.00  for  each  ad- 
ditional 1,000;  and  in  all  counties  in  excess  of  50,000  inhabitants 
the  sum  of  $3,000.00  per  annum,"  61  is  qualified  by  a  statute  re- 
cently enacted  providing  that  "in  all  counties  in  this  state  having  a 
population  not  less  than  37,499  and  not  more  than  37,750  as  shown 
by  the  last  Federal  census,  the  county  attorneys  of  any  such  coun- 
ties on  and  .after  January  4th,  1923,  shall  be  paid  an  annual  salary 
of  three  thousand  five  hundred  ($3,500.00)  dollars,  and  the  county 

89  Rev.  Laws  1910,  §  1832. 

A  county  is  not  liable  for  the  fee  of  a  pro  tempore  county  judge;  there 
being  no  statute  imposing  such  liability.  Board  of  Com'rs  of  Oklahoma 
County  v.  Twyford,  39  Okl.  230,  134  P.  968.  The  provision  of  Rev.  Laws  1910, 
§  1832,  that  "in  no  event  shall  the  county  be  liable  for  more  than  one-half 
of  such  cost,"  is  not  enough,  standing  alone,  to  make  a  county  liable  for  the 
fee  of  a  pro  tempore  county  judge.  Id. 

60  Deninger  v.  Gossom,  46  Okl.  596,  149  P.  220. 

61  Sess.  Laws  1910-11,  p.  152,  §  1,  amending  Rev.  Laws  1910,  §  1839. 

The  compensation  of  judges  of  the  county  courts  in  counties  with  a  popu- 
lation of  less  than  20,000,  under  Const:  Schedule,  §  18  (Buim's  Ed.  §  467),  is, 
as  provided  by  Sess.  Laws  Okl.  1903,  p.  161,  c.  14,  §  1,  the  sum  of  $1,600,  to 

(62) 


Art   1)  COURTS  AND  JUDGES  §§    112-114 

judges  in  such  counties  on  and  after  January  4th,  1923,  shall  be 
paid  an  annual  salary  of  three  thousand  ($3,000.00)  dollars."  62 

§  112.-    Court  reporters 

The  statute  providing  for  appointment  of  a  county  stenographer 
by  county  clerk  on  approval  of  county  court  confirmed  by  county 
commissioners,   is   mandatory,  and  proper  administration  of  jus-* 
tice   demands  prompt  compliance  therewith   by  public   officers.63 

In  counties  having  a  population  of  80,000  or  less,64  a  county 
stenographer  cannot  retain  fees  for  making  transcripts  of  proceed- 
ings in  the  couifty  court,  but  compensation  for  such  services  is 
limited  to  salary.65 

§  113.     Rules  for  county  court 

The  statute  authorizes  the  Supreme  Court  to  make  rules  relating 
to  probate  procedure  66  and  binding  on  county  courts.67 

The  county  court  cannot  promulgate  a  rule  requiring  that  a  party 
appealing  from  a  justice's  court  shall  make  a  deposit  with  the  clerk 
of  the  county  court  on  costs  accruing  therein.68 

DIVISION  VI. — SUPREME  COURT  AND  JUDGES 

§  114.     Membership — Quorum — Eligibility — Term    of    office — Va- 
cancies— Jurisdiction 

The  constitution  provides  "the  Supreme  Court  shall  consist  of 
five  Justices  until  the  number  shall  be  changed  by  law.  The  state 
shall  be  divided  into  five  Supreme  Court  judicial  districts  Until 
the  Legislature  shall  change  the  number  of  members  of  the  court, 
at  which  time  the  Legislature  shall  redistrict  the  state  to  conform 
to  the  number  of  Justices  of  the  Supreme  Court.  From  each  of 
said  districts,  candidates  for  Justice  of  the  Supreme  Court  shall  be 
nominated  by  political  parties,  or  by  petitioners  of  the  respective 

be  retained  out  of  the  fee  received  by  him  as  judge.     State  v.  Frear,  96  P. 
628,  21  Okl.  397. 

62  Sess.  Laws  1921,  c.  64,  §  1  (S.  B.  281). 

«3  Sess.  Laws  1913,  c.  161,  §  2 ;   Wiswell  v.  State,  14  Okl.  Cr.  517,  173  P.  662. 

64  Sess.  Laws  1919,  p.  244. 

65  Board  of  Com'rs  of  Oklahoma  County  v.  De  Armond,  55  Okl.  *618,  155  P. 
592 :   Waide  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  56  Okl.  38,  155  P.  884. 

66  Rev.  Laws  1910,  §  5347. 

67  State  v.  Eight,  49  Okl.  202.  152  P.  362. 

68  St.  Louis  &  S.  F.  R.  Co.  v.  McAllister,  56  Okl.  244,  155  P.  1123. 

(63) 


§§    114-115  COURTS  AND  COURT  OFFICERS  (Ch.  1 

districts,  in  the  manner  provided  by  law,  and  such  candidates  shall 
be  voted  for  by  the  qualified  voters  of  the  state  at  large,  and  no 
elector  at  such  election  shall  vote  for  more  than  one  candidate  from 
each  district.  The  candidate  from  each  district  receiving  the  high- 
est number  of  votes  cast  in  the  state  at  said  election  shall  be  de- 
clared the  Justice-elect  in  said  district.  A  majority  of  the  members 
of  the  Supreme  Court  shall  constitute  a  quorum,  and  the  concur- 
rence of  the  majority  of  said  court  shall  be  necessary  to  decide 
any  question.  No  person  shall  be  eligible  to  the  office  of  Justice  of 
the  Supreme  Court  unless  he  shall  be  at  the  time  of  his  election 
a  citizen  of  the  United  States  and  shall  have  been  a  resident  of 
the  territory  embraced  within  the  state  for  a  period  of  two  years, 
and  of  the  territory  comprising  the  district  from  which  he  is  elect- 
ed for  a  period  of  one  year;  and  unless  he  shall  have  attained  the 
age  of  thirty  years  and  shall  have  been  a  lawyer  licensed  by  some 
court  of  record,  or  shall  have  been  a  judge  of  some  court  of  record, 
or  such  judge  and  lawyer  together  at  least  five  years. 

"The  term  of  office  of  the  Justices  of  the  Supreme  Court  shall 
be  six  years,  except  as  herein  provided.  Each  member  of  such  court 
shall  be  a  conservator  of  the  peace  throughout  the  state ;  and  in  case 
of  a  vacancy  in  the  membership  of  said  court,  the  Governor  shall,  by 
appointment  from  the  district,  fill  such  vacancy  until  the  next 
general  election  for  State  officers,  and  at  such  general  election  the 
vacancy  for  the  unexpired  term  shall  be  filled  by  election  by  the 
qualified  voters  of  the  state."  69 

§  115.    Justices — Judicial  districts — Election — Law  clerks 

"The  Supreme  Court  shall  consist  of  nine  Justices."  70 
Provision  is  made  by  law  for  the  division  of  the  state  into  nine 
Supreme  Court  judicial  districts,71  and  for  the  election  of  a  Justice 
from  each  Supreme  Court  judicial  district,  and  their  terms  of  office 
fixed.72 

Each  Justice  may  appoint  a  law  clerk,  who  shall  be  a  competent 
stenographer  and  typist,  at  a  salary  of  $1,200  per  year,  to  assist 
such  Justice  in  his  clerical  work  and  perform  other  duties.73 

69  Const.  Okl.  art.  7,  §  3.  *2  Sess.  Laws  1917,  p.  232,  §  3. 

70  Sess.  Laws  1917,  p.  282.  §  1.  TS  Sess.  Laws  1917,  p.  233,  §  5. 
"  Sess.  Laws  1917,  p.  232,  i  2. 

(64) 


Art.  1)  COURTS  AND  JUDGES  §§    116-120 

§  116.    Referees  and  first  law  clerk 

Provision  has  been  made  by  statute  for  two  Supreme  Court 
referees  and  one  first  law  clerk  as  an  assistant  to  the  Chief  Jus- 
tice, and  for  their  salary,  appointment  and  qualifications.7* 

§  117.     Chief  Justice— Election 

"The  Chief  Justice  of  the  Supreme  Court  shall  be  elected  by 
members  of  the  Supreme  Court  on  the  second  Monday  in  January 
of  each  odd-numbered  year.  If  for  any  reason  the  election  of  Chief 
Justice  should  not  occur  on  the  day  mentioned,  the  court  shall 
by  order  fix  some  day  for  such  election.  The  Chief  Justice  when 
so  elected  shall  hold  office  for  two  years,  or  until  his  successor  is 
elected  and  qualified."  7B 

§  118.    Vice  Chief  Justice— Election 

"The  members  of  the  Supreme  Court  shall,  at  the  time  fixed  by 
law  for  the  election  of  a  Chief  Justice,  or  at  such  other  time  as  may 
be  necessary,  elect  one  of  their  number  as  Vice  Chief  Justice,  who 
shall  perform  the  duties  of  the  Chief  Justice  in  his  absence,  sickness 
or  inability  to  serve.  The  term  of  office  of  such  Vice  Chief  Justice 
shall  be  concurrent  with  the  Chief  Justice  presiding  at  the  time  of 
his  election."  7e 

§  119.    Justices — Not  to  be  candidate  for  other  office 

"No  Justice  of  the  Supreme  Court  shall  become  during  the  term 
for  which  he  may  be  elected  or  appointed,  a  candidate  for  any  office 
other  than  a  judicial  position."  77 

§  120.     Commencement  of  term 

"The  term  of  office  of  the  Justices  of  the  Supreme  Court  shall 
commence  on  the  second  Monday  of  January  following  their  elec- 
tion: Provided,  however,  that  the  term  of  office  of  the  Justices 
elected  at  the  first  election  under  this  Constitution  shall  commence 
upon  the  admission  of  the  state  into  the  Union,  and  shall  continue 
as  hereinafter  provided.  Those  appointed  or  elected  to  fill  vacan- 
cies shall  enter  upon  the  discharge  of  their  duties  as  soon  as  they 
qualify."  78 

T*  Sess.  Laws  1919,  c.  127,  §  2.  *7  Sess.  Laws  1917,  p.  233,  §  7. 

™  Rev.  Laws  1910,  §  1750.  78  Const.  Okl.  art.  7,  §  4. 

7io  Rev.  Laws  1910,  §  1751. 

HON.PI-.&  PRAC.— 5  (65) 


§§    121-123  COURTS  AND  COURT  OFFICERS  (Ch.  1 

§  121.     Sessions — Opinions 

"The  sessions  of  the  Supreme  Court  shall  be  held  at  the  seat 
of  Government,  and  the  sessions  and  duration  thereof  shall  be 
fixed  by  rule  of  said  court,  until  fixed  by  the  Legislature ;  but  the 
first  term  of  the  Supreme  Court  shall  be  held  within  ninety  days 
after  the  admission  of  the  state.  The  Supreme  Court  shall  ren- 
der a  written  opinion  in  each  case  within  six  months  after  said 
case  shall  have  been  submitted  for  decision."  7* 

§  122.     Chief  Justice — Expiration  of  terms — Election 

"At  the  first  session  of  the  Supreme  Court  the  Justices  thereof 
shall  elect  one  of  their  number  Chief  Justice,  who  shall  serve  as 
Chief  Justice  until  the  expiratiorj  of  his  term  of  office;  thereafter 
the  Chief  Justice  shall  be  elected  in  the  manner  provided  by  law. 
Of  the  Justices  elected  at  the  first  election,  the  term  of  two  of  them 
shall  expire  at  the  close  of  the  day  next  preceding  the  second  Mon- 
day in  January,  nineteen  hundred  and  nine;  and  the  term  of  two 
of  the  others  shall  expire  at  the  close  of  the  day  next  preceding 
the  second  Monday  in  January,  nineteen  hundred  and  eleven,  and 
the  term  of  the  other  Justice  shall  expire  at  the  close  of  the  day 
next  preceding  the  second  Monday  in  January,  nineteen  hundred 
and  thirteen.  The  Supreme  Court  shall,  by  order  duly  entered  in 
its  minutes,  provide  the  means  of  determining  by  lot  the  expira- 
tion of  the  terms  of  each  of  the  Justices  as  hereinbefore  provided, 
and  shall  determine  in  accordance  therewith,  and  enter  in  the 
minutes  of  the  court  its  order  showing  the  expiration  of  the  term  of 
each  of  such  Justices.  After  the  first  election,  Justices  £>f  the  Su- 
preme Court  shall  be  elected  at  the  general  biennial  election  next 
preceding  the  beginning  of  their  respective  terms."  80 

§  123.     Clerk 

"There  shall  be  elected  by  the  qualified  electors  of  the  state  at 
each  election  for  Governor,  a  clerk  of  the  Supreme  Court,  who 
shall  be  at  least  twenty-five  years  of  age  and  a  qualified  elector  of 
the  state,  and  whose  term  shall  be  the  same  as  that  of  the  Govern- 


79  Const.  Okl.  art.  7,  §  5. 

As  to  divisions,  opinions,  jurisdiction,  referees,  and  law  clerks  of  the  Su- 
preme Court,  see  Sess.  Laws  1919,  p.  181,  §§  1-4. 

80  Const.  Okl.  art.  7,  §  6. 

(66) 


Art  1)  COURTS  AND  JUDGES  §§  124-127 

or,  and  he  shall  give  bond  for  faithful  performance  of  his  duty  as 
may  be  prescribed  by  law."  81 

§  124.     Law  governing 

"The  appellate  and  the  original  jurisdiction  of  the  Supreme  Court 
shall  be  invoked  in  the  manner  now  prescribed  by  the  laws  of  the 
territory  of  Oklahoma  until  the  Legislature  shall  otherwise  pro- 
vide." 82 

§  125.     Salaries  of  Justices 

"The  salary  of  each  Justice  of  the  Supreme  Court  and  each 
Judge  of  the  Criminal  Court  of  Appeals  shall  be  six  thousand  dol- 
lars ($6,000.00)  per  annum,  payable  monthly,  as  provided  by  law."  83 

i 
§  126.     Effect  of  invalidity 

Provision  is  made  by  statute  that  if  the  preceding  clause  fixing 
the,  salaries  of  Justices  "shall  be  held  by  the  Supreme  Court  of  this 
State  to  be  invalid  as  to  Justices  of  the  Supreme  Court  and  Judges 
of  the  Criminal  Court  of  Appeals  now  in  office  or  any  of  them,  such 
decision  shall  not  affect  the  validity  of  said  section  one  of  this 
act  as  to  Justices  of  the  Supreme  Court  and  Judges  of  the  Crimi- 
nal Court  of  Appeals  hereafter  elected  or  appointed;  and  it  is  here- 
by declared  the  intention  of  the  Legislature  that  the  salary  of  each 
Justice  of  the  Supreme  Court  and  each  Judge  of  the  Criminal  Court 
of  Appeals  hereafter  to  be  elected  or  appointed  shall  be  six  thou- 
sand dollars  ($6,000.00)  per  annum,  payable  monthly  as  provided 
by  law,  whether  this  act  as  to  the  Justices  of  the  Supreme  Court 
and  Judges  of  the  Criminal  Court  of  Appeals  now  in  office  or  any 
of  them  shall  be  held  invalid  or  otherwise."  8* 

§  127.     Jurisdiction — Divisions 

"The  Supreme  Court  may  by  rules  provide  for  two  divisions  of 
said  court,  each  division  to  be  constituted  of  any  four  Justices  sit- 
ting with  the  Chief  Justice,  Vice  Chief  Justice,  or  any  Justice  desig- 
nated by  the  Chief  Justice  or  the  Vice  Chief  Justice.  Each  of  the 
divisions  may  sit,  hear,  consider,  and  determine  causes  and  all 
questions  which  may  arise  therein,  subject  to  the  provisions  herein 
contained  as  to  hearings  before  the  whole  court.  A  concurrence  of 

81  Const.  Okl.  art.  7,  §  7.  83  Sess.  Laws  1919,  c.  204.  §  1. 

82  Const.  Okl.  art.  7,  §  S.  8*  Sess.  Laws  1919,  c.  204,  §  2. 

(67) 


§§    127-129  COURTS  AND  COURT  OFFICERS  (Ch.  1 

a  majority  of  the  Justices  of  the  whole  court  in  the  determina- 
tion of  any  cause  shall  be  necessary,  and  in  case  of  a  dissent  in  a 
division  in  the  termination  of  any  cause  such  cause  shall  thereup- 
on be  determined  by  the  whole  court.  Causes  involving  the  con- 
stitutionality of  a  statute  shall  be  assigned  for  oral  argument  or 
submission  before  the  whole  court,  and  no  former  adjudication  of 
the  court  shall  be  overruled  or  materially  modified  except  upon  con- 
ference of  the  whole  court.  Nothing  in  this  section  shall  be  con- 
strued as  limiting  the  authority  of  the  "court  to  submit  other  causes 
to  the  whole  court :  Provided,  that  when  any  rule  of  the  Supreme 
Court  is  in  conflict  with  any  law  of  this  state,  said  rule  shall  have 
no  effect."  8B 

A  statute  has  just  been  enacted  conferring  upon  the  Supreme 
Court  an  original  jurisdiction  in  suits  to  enjoin  the  collection  of 
illegal  taxes  for  any  state  purpose  and  prescribing  the  procedure 
therein.88 

§  128.    Appeals  from  county  court 

"Appeals  and  proceedings  in  error  shall  be  taken  from  the  judg- 
ments of  county  courts  direct  to  the  Supreme  Court  *  *  *  in 
all  cases  appealed  from  justices  of  the  peace,  *  *  *  and  in  all 
civil  cases  originally  brought  in  the  county  court,  in  the  same  man- 
ner and  by  like  proceedings  as  appeals  are  taken  to  the  Supreme 
Court  from  judgments  of  the  district  court."  87 

§  129.    Appeals  from  Corporation  Commission 

Appellate  jurisdiction  is  conferred  upon  the  Supreme  Court  in 
this  state  to  review  the  action  of  the  Corporation  Commission  in 
making  any  order,  or  orders,  in  cases  arising  under  the  laws  relating 
to  the  production  and  sale  of  crude  oil  or  petroleum.  "Such  ap- 
peal may  be  taken  by  any  person,  firm  or  corporation,  shown  by 
the  record  to  be  interested  therein,  in  the  same  manner  and  time 
as  appeals  are  allowed  by  law  from  other  orders  of  the  Corporation 
Commission.  Said  orders  so  appealed  from  shall  not  be  supersed- 
ed by  the  mere  fact  of  such  appeal  being  taken,  but  shall  be  and  re- 

85  Sess.  Laws  1919,  c.  127,  §  1. 

As  to  divisions,  opinions,  jurisdiction,  referees,  and  law  clerks  of  the  Su- 
preme Court,  see  Sess.  Laws  1919,  p.  181,  §§  1-4. 

86  Sess.  Laws  1921,  c.  31  (S.  B.  No.  134)  §§  1-9. 

87  Rev.  Laws  1910,  §  1819. 

(68) 


Art.  1)  COURTS  AND  JUDGES  §§  129-130 

main  in  full  force  and  effect  until  legally  suspended  or  set  aside 
by  the  Supreme  Court."  88 

Appellate  jurisdiction  is  conferred  upon  the  Supreme  Court 
of  this  state  to  review  the  order  of  said  commission  made  un- 
der the  laws  relative  to  production  and  transportation  of  natural 
gas.  "Such  appeal  may  be  taken  by  any  person,  firm  or  corpora- 
tion shown  by  the  record  to  be  interested  therein,  in  the  same  man- 
ner and  time  as  appeals  are  allowed  by  law  from  other  orders  of 
the  Corporation  Commission.  Said  orders  so  appealed  from,  may 
be  superseded  by  the  commission  or  by  the  Supreme  Court  upon 
such  terms  and  conditions  as  may  be  just  and  equitable."  89 

§  130.    Appeals  from  State  Labor  Commission 

In  all  cases  before  the  State  Labor  Commission  arising  under 
the  Workmen's  Compensation  Law,  "the  award  or  decision  of  the 
commission  shall  be  final  and  conclusive  upon  all  questions  within 
its  jurisdiction  between  the  parties,  unless  within  thirty  days  aft- 
er a  copy  of  such  award  or  decision  has  been  sent  by  said  com- 
mission to  the  parties  affected,  an  action  is  commenced  in  the 
Supreme  Court  of  the  state  to  review  such  award  or  decision.  Said 
Supreme  Court  shall  have  original  jurisdiction  of  such  action,  and 
is  authorized  to  prescribe  rules  for  the  commencement  and  trial 
of  the  same.  Such  action  shall  be  commenced  by  filing  with  the 
clerk  of  the  Supreme  Court  a  certified  copy  of  the  award  or  de- 
cision of  the  commission  attached  to  the  petition  by  the  com- 
plainant wherein  the  complainant  or  petitioner  shall  make  his  as- 
signments or  specifications  as  to  wherein,  said  award  or  decision 
is  erroneous  andx  illegal.  Said  proceeding  shall  be  heard  in  a  sum- 
mary manner  and  have  precedence  over  all  other  civil  cases  in  such 
court,  except  preferred  Corporation  Commission  appeals.  The 
commission  shall  be  deemed  a  party  to  such  proceeding  and  the 
Attorney  General,  without  extra  compensation,  shall  represent  the 
commission  therein.  Such  action  shall  be  subject  to  the  law  and 
practice  applicable  to  other  civil  actions  cognizable  in  said  court. 
Upon  the  final  determination  of  said  action  in  which  the  award  or 

88  Sess.  Laws  1915,  p.  38,  §  7.     An  appeal  may  be  taken  to  the  Supreme 
Court  from  a  ruling  of  the  State  Corporation  Commission.     St.  Louis-San 
Francisco  Ry.  Co.  v.  Teel  (Okl.)  198  P.  78. 

89  Sess.  Laws  1915,  p.  401,  §  7. 

(69) 


§P    131-133  COURTS  AND  COURT  OFFICERS  (Ch.  1 

decision  of  the  commission  is  sought  to  be  reviewed,  the  commis- 
sion shall  make  an  order  or  decision  in  accordance  with  the  judg- 
ment of  said  court.  The  commission  shall  not  be  liable  for  any 
costs  apart  from  said  proceeding,  but  otherwise  the  costs  shall  be 
taxed  as  in  other  cases."  90 

§  131.     Formation  of  new  counties 

Exclusive  original  jurisdiction  is  conferred  upon  the  Supreme 
Court  of  Oklahoma  over  all  controversies  that  may  arise  under  the 
provisions  of  law  for  the  formation  of  new  counties  and  selec- 
tion of  county  seats,  "and  any  person  affected  by  such  election 
shall  have  a  right  to  a  hearing  before  the  Supreme  Court  upon 
application  filed  and  presented  within  thirty  days  after  any  such 
election  shall  be  held."  9] 

§  132.    Speedy  hearing 

"If  any  application  for  a  hearing,  upon  any  question  arising  after 
such  election  has  been  held,  is  filed  with  the  Supreme  Court,  it  shall 
be  the  duty  of  said  court  to  make  said  matter  special  and  give  it 
precedence  over  the  other  business  of  said  court,  and  consider  and 
pass  upon  the  same  as  speedily  as  is  consistent  with  the  business 
of  said  court."  92 

§  133.     Original    jurisdiction — Division    of    assets    and    liabilities 
among  counties 

Original  and  exclusive  jurisdiction  is  conferred  by  law  upon  the 
Supreme  Court  in  all  actions  brought  for  the  purpose  of  equitably 
dividing  and  distributing  the  property,  assets  and  liabilities,  de- 
rived through  the  process  of  taxation,  bonds,  warrants  or  other  evi- 
dences of  indebtedness,  of  any  county  formerly  existing  in  the 
territory  of  Oklahoma,  between  such  county  and  any.  new  county 
or  counties,  and  in  all  actions  involving  the  custody  of,  or  right  to 
transcribe  the  tax  rolls  or  other  records  of  any  such  county,  and  the 
ownership  and  distribution  of  taxes  assessed  and  collectable  there- 
in, and  providing  for  the  appointment  of  a  special  master  in  chan- 
cery in  such  cases.83 

80  Sess.  Laws  1915,  p.  586,  art.  2,  §  13. 

91  Sess.  Laws  1910-11,  p.  81,  §  13;    Rev.  Laws  1910,  §  1533. 

92  Sess.  Laws  1910-11,  p.  81,  §  14;    Rev.  Laws  1910,  §  1534. 

93  Sess.  Laws  1917,  p.  226,  g  1,  amending  Rev.  Laws  1910,  §  1512. 

(70) 


Art.  1)  COURTS  AND  JUDGES  §§134-136 

§  134.     Parties — Proceedings 

Any  additional  necessary  party  may  be  brought  in  on  proper  ap- 
plication and  showing  after  expiration  of  the  thirty  days.  The  pro- 
ceeding under  this  statute  is  a  summary  proceeding  to  contest 
county  seat  elections,  exclusive  jurisdiction  being  conferred  upon 
the  Supreme  Court,  and  any  city,  town,  or  place,  being  a  candidate 
for  county  seat  at  an  election,  has  a  right  of  hearing  before  the 
Supreme  Court  on  application  filed  within  thirty  days  after  the 
election  is  held.  The  requirement  that  the  petition  be  filed  within 
thirty  days  is  jurisdictional.  There  is  no  requirement  of  the  statute 
that  the  county  be  a  party  to  the  proceeding.94 

§  135.     Constitution 

Section  6  of  article  17  of  the  Constitution  of  Oklahoma  provid- 
ing for  the  relocation  or  removal  of  county  seats  of  the  different 
counties  of  the  state,  is  self-executing,  and  it  was  not  necessary  to 
enact  statutes  in  order  that  same  might  be  enforced.  The  statute 
provides  additional  precautions  and  supplements  the  procedure.95 

§  136.     Jurisdiction — Removal  of  state  capital  and  normal  schools 

"Exclusive  original  jurisdiction  is  hereby  conferred  upon  the 
Supreme  Court  of  the  state  of  Oklahoma,  to  hear  and  determine  any 
action  that  may  be  brought  involving  the  legality  of  the  removal  or 
location,  or  any  attempt  to  remove  or  locate,  the  state  capital  or  any 
normal  school  or  other  educational  or  charitable  institution  of  the 
state,  and  in  any  such  action  the  Supreme  Court  shall  have  the  same 
power  and  jurisdiction,  including  the  power  to  appoint  a  referee, 
which  it  now  has  under  "the  laws  of  this  state  in  contests  over  the 
location  of  county  seats,  and  all  such  actions  shall  be  governed  by 
the  same  procedure  which  now  prevails  in  county  seat  contests : 
Provided,  that  any  resident  taxpayer  of  this  state,  shall  have  a 
right  to  a  hearing  before  the  Suprerne  Court  upon  the  execution 
of  a  good  and  sufficient  bond  for  cost,  to  be  approved  by  the  clerk 
of  the  court.  And,  provided  further  that  any  and  all  actions  brought 
under  the  provisions  of  this  act  shall  be  commenced  within  ten  days 
after  the  passage  of  any  act  for  the  removal  or  location  of  the  state 

94  Incorporated  Town  of  Westville  v.  Incorporated  Town  of  Stillwell,  24 
Okl.  892,  105  P.  664. 

95  Incorporated  Town  of  Westville  v.  Incorporated  Town  of  Stillwell,  24 
Okl.  892,  105  P.  664. 

(71) 


§§    137-140  COURTS  AND  COURT  OFFICERS  (Ch.  1 

capital  or  any  normal  school  or  other  educational  or  charitable  in- 
stitution of  the  state."  9<J 

§  137.    Jury  trial,  when 

"In  any  cause  in  the  Supreme  Court  wherein  said  court  is  exer- 
cising its  original  jurisdiction  in  which  an  issue  of  fact  is  presented 
properly  triable  by  a  jury,  and  either  party  to  said  cause  demands 
a  jury  trial,  or  in  cases  of  indirect  contempts,  if  the  accused  demands 
a  jury  trial,  said  court  shall  not  dismiss  such  cause  for  the  reason 
that  a  jury  is  required,  but  shall  proceed  in  the  manner  hereinafter 
prescribed."  97 

§  138.    Trial 

"The  Supreme  Court  may  try  said  issue  of  fact  in  bane  or  may 
designate  one  of  its  members  to  preside  at  such  trial;  and  a  jury 
shall  be  secured  as  provided  in  the  following  section.  The  court 
or  the  justice  trying  the  same  shall  conduct  said  trial,  and  the  ver- 
dict therein  shall  be  rendered  in  the  same  manner  as  the  trial  of 
issues  of  fact  in  civil  causes  in  district  courts."  98 

§  139.    Jury — How  selected 

"The  Supreme  Court,  or  the  member  thereof  designated  to  try 
said  issue  of  fact,  shall  by  order  direct  the  clerk  of  said  court  to  is- 
sue an  open  venire  for  twenty-four  persons  having  the  qualification 
of  jurors  in  the  district  court,  to  be  drawn  from  the  body  of  the 
state,  which  venire  shall  state  the  time  and  place  said  jurors  shall 
appear.  The  venire  shall  be  issued  to  and  served  and  returned  by 
the  marshal  of  said  court.  If  any  of  said  jurors  shall  be  disquali- 
fied to  serve,  the  court  may  summon  other  jurors,  in  the  manner 
provided  by  law,  to  complete  said  panel.  Challenges  shall  be  al- 
lowed to  such  jurors  as  in  civil  causes  before  the  district  court."  " 

§  140.    Costs— Witness  fees 

"The  party  demanding  a  jury  shall  deposit  with  the  clerk  of  the 
Supreme  Court  a  sum  sufficient  to  pay  the  expenses  of  summoning 
the  jury  and  the  jurors'  fees.  The  clerk,  marshal,  jurors  and  wit- 
nesses shall  be  entitled  to  the  same  fees  and  mileage  as  are  allowed 
in  the  district  court  for  like  services.  Witnesses  may  be  notified  by 

86  Sess.  Laws  1910-11,  p.  1,  §  1.  »«  Rev.  Laws  1910,  §  1756. 

97  Rev.  Laws  1910,  §  1755.  ••  Rev.  Laws  1910,  §  1757. 

(72) 


Art.  1)  COURTS  AND  JUDGES  §§  141-142 

the  clerk  by  mail  and  shall  be  required  to  attend  from  any  county  in 
the  state,  if  required  by  the  party  requesting  such  witness.  The  en- 
tire costs  in  the  cause  shall  be  adjudged  against  the  losing  party, 
or  apportioned  in  such  manner  as  the  court  may,  in  its  discretion,  di- 
rect. The  court  may  require  deposits  from  either  party  as  the 
cause  proceeds,  to  secure  costs."  x 

§  141.    Reports 

"The  decisions  and  opinions  of  the  Supreme  Court  shall  be  pub- 
lished in  volumes  and  known  as  the  'Oklahoma  Reports.'  Each 
volume  shall  be  labeled  on  the  back,  as  follows:  On  a  label  near 
the  top,  the  words  'Oklahoma  Reports' ;  stamped  in  the  center,  the 
consecutive  figure  designating  the  number  of  the  volume;  and  on 
a  label  near  the  bottom,  the  consecutive  figure  designating  the 
number  of  the  volume,  the  consecutive  number  designating  the 
numerical  order  of  the  volume  since  statehood  together  with  the 
word  'State,'  the  name  of  the  reporter  preparing  the  volume  for 
publication,  and  the  year  or  years  in  which  the  decisions  and  opin- 
ions contained  in  the  volume  were  rendered."  2 

§  142.     Supreme  Court  rules 

"The  Justices  of  the  Supreme  Court  shall  meet  every  two  years 
during  the  month  of  June,  at  the  capital  of  the  state,  and  re- 
vise their  general  rules,  and  make  such  amendments  thereto  as  may 
be  required  to  carry  into  effect  the  provisions  of  this  code,  and 
shall  make  such  further  rules  consistent  therewith  as  they  may 
deem  proper.  The  rules  so  made  shall  apply  to  the  supreme  court, 
the  district  courts,  the  superior  courts,  the  county  courts,  and  all 
other  courts  of  record."  8 


1  Kev.  Laws  1910,  §  1758.  *  Rev.  Laws  1910,  §  5347. 

2  Rev.  Laws  1910,  §  8159. 


(73) 


COURTS  AXD  COURT  OFFICERS  (Ch,  1 


ARTICLE  II 

OTHER  COURT  OFFICERS 

DIVISION  I.— IN  GENERAL 

Sections 

143.  Compensation. 

144.  Deputies — Duties. 

145.  Bailiffs. 

DIVISION  II. — COURT  CLERKS 

146.  Office — Selection — Eligibility. 

147.  Official  bond — Form. 

148.  Powers  and  duties — Contestants. 

149.  Liabilities. 

150.  Deputies. 

151.  Vacancies. 

152.  Fees  and  salaries. 

153.  Books  to  be  kept. 

154.  Appearance  docket. 

155.  Indorsements. 

156.  Execution  docket. 

157.  Judgment  docket. 

158.  Journal. 

159.  Files. 

160.  Cases — Court  records. 

161.  Application  of  statute. 

162.  Journal  entry — Order  of  sale — Homestead — Insane  spouse. 

DIVISION   III.— SHERIFFS   AND   OTHER  PEACE  OFFICERS 

163.  Sheriffs  and  deputies. 

164.  Service  of  writs  and  process — Amercement. 

165.  Substitute  for  sheriff. 

166.  Fees  and  salaries. 

167.  Power  and  duty. 

168.  Liability — Amercement. 

169.  Official  bonds. 

170.  Acts  of  deputy. 

171.  Wrongful  attachment. 

172.  Indemnity  bonds. 

. 

DIVISION  IV. — ATTORNEYS 

173.  Who  permitted   to  practice — Examinations  for  admission. 

174.  Applicants  to  conform  to  rules — Fees  for  admission. 

175.  Examination — Commission. 

176.  Qualifications. 

177.  Persons  not  permitted  to  practice. 

178.  Attorneys  from  other  states — How  admitted. 

179.  Oath  upon  admission. 


Art.  2)  OTHER   COURT   OFFICERS  §§    143~145 

Sections 

180.  Foreign  attorneys. 

181.  Duties. 

182.  Power,  duty,  and  liability. 

183.  Implied    authority — Tender — Compromise— Notice. 

184.  May  receive  money  for  client. 

185.  Proof  of  authority  to  appear. 

186.  Purchasing  property. 

187.  Lien  for  services — Extent — Notice. 

188.  Fees. 

189.  Enforcement — Compromise  without  notice. 

190.  Amount  which  may  be  recovered. 

191.  May  not  become  surety  in  action  in  which  employed. 

192.  Lien — Release  by  giving  bond. 

193.  Suspension  of  license — Disbarment. 

194.  Causes. 

195.  Defenses — Limitations. 

196.  Proceedings — How  commenced. 

197.  Trial — Judgment. 

198.  Attorney  and  client  in  general. 

DIVISION  I. — IN  GENERAL 

§  143.     Compensation 

Special  provisions  have  been  made  at  various  times  for  the  s'al- 
aries  and  compensation  of  county  officers,  deputies,  and  assistants  in 
particular  counties,4  and  also  for  assistants  to  state  officers.5 

§  144.     Deputies — Duties 

"Any  duty  enjoined  by  this  code  upon  a  ministerial  officer,  and 
any  act  permitted  to  be  done  by  him,  may  be  performed  by  his 
lawful  deputy."  6 

§  145.     Bailiffs 

A  bailiff  of  a  court  of  record  is  entitled  only  to  a  sum  not  ex- 
ceeding that  fixed  by  statute,  and  cannot  claim  additional  compen- 
sation because  his  duties  require  him  to  remain  in  attendance  dur- 
ing the  nighttime.7 

*  Sess.  Laws  1919,  cc.  85,  86,  87,  90,  109,  114,  117,  132,  133,  136,  137,  140, 
164,  165,  187,  213,  249,  250,  266,  271,  275,  294,  301. 

5  Sess.  Laws  1919,  c.  215. 

6  Rev.  Laws  1910,  §  5339. 

T  Board  of  Com'rs  of  Mclntosh  County  v.  Whitaker,  59  Okl.  232,  158  P. 
1136. 

(75) 


§§    146-147  COURTS  AND  COURT  OFFICERS  (Ch.  1 

DIVISION  II. — COURT  CLERKS 

§  146.     Office— Selection— Eligibility 

The  office  of  court  clerk  is  a  county  office,8  created  by  law,  and 
provision  is  made  for  his  salary  and  for  the  appointment  of  deputy 
court  clerks  and  their  salaries.9 

In  certain  counties  the  court  clerk  is  ex  officio  register  of  deeds.10 
The  judge  of  the  court  has  no  authority  to  fill  the  office  by  appoint- 
ment.11 

A  woman,  otherwise  qualified,  is  eligible  to  hold  the  office.12 

§  147.     Official  bond— Form 

"Before  entering  upon  the  duties  of  his  office  the  clerk  of  the 
district  court  shall  give  bond  to  the  state  of  Oklahoma,  in  the  sum 
of  not  less  than  two  thousand  dollars,  nor  more  than  ten  thousand 
dollars  to  be  fixed  and  approved  by  the  board  of  county  commis- 
sioners, conditioned  for  the  faithful  performance  of  his  official  du- 
ties, and  for  the  accounting  and  paying  over  of  all  moneys  by  him 
received  as  such  officer."  18 

Where  a  bond,  voluntarily  given  by  a  clerk  for  a  valid  considera- 
tion, prior  to  the  passage  of  the  act  requiring  official  bonds  to 
be  given  by  district  clerks,  named  the  state  of  Oklahoma  as  obligee, 
and  was  conditioned  for  the  faithful  performance  of  his  official  acts 
and  for  the  accounting  and  paying  over  of  moneys  received  by  him 
as  such  officer,  it  was  a  valid  and  binding  obligation,  though  not  re- 
quired by  statute.1* 

OFFICIAL  BOND 

State  of  Oklahoma, 

County  of . 

Know  all  men  by  these  presents :    That  we, ,  as  principal, 

and , ,  and ,  are  held  and  firmly  bound  unto  (1) 

8  Sexsmith  v.  Chappell,  130  P.  282,  35  Okl.  503 ;  Beaty  v.  State,  130  P.  956, 
35  Okl.  677. 

8  Sess.  Laws  1915,  pp.  5-7,  §§  1-4,  amending  Sess.  Laws  1913,  pp.  330-334, 
§§  1,  5,  8,  9;  Sess.  Laws  1913,  pp.  331,  332,  §§  2-4. 

10  Sess.  Laws  1913,  pp.  406,  407,  §§  1-3. 

"Matney  v.  King,  93  P.  737,  20  Okl.  22;  Ramsey  v.  Same,  93  P.  754,  20 
Okl.  67. 

12  Gilliland  v.  Whittle,  127  P.  698,  33  Okl.  708. 

«  Rev.  Laws  1910,  §  5321. 

"Ahsmuhs  v.  Bowyer,  39  Okl.  376,  135  P.  413,  50  L.  R.  A.  (N.  S.)   1060. 

(76) 


Art.  2)  OTHER  COURT  OFFICERS  §§  147-148 

>,  in  the  sum  of  (2) dollars,  for  the  payment  of  which 

we  hereby  bind  ourselves,  our  heirs,  executors  and  administrators, 
jointly  and  severally,  by  these  presents. 

Whereas,  the  above  bounden  was  duly  (3)  to 

the  office  of : —  of  the  county  of ,  in  the  state  of  Oklaho- 
ma, on  the day  of ,  19 — : 

Now,  therefore,  the  condition  of  this  obligation  is  such,  that  if 

the  said • —  shall  (4)  ,  then  this  obligation  shall  be  void ; 

otherwise,  to  remain  in  full  force  and  effect. 

In  testimony  whereof,  witness  our  hands,  this  day  of 

,  19-. 


(Qualification  of  sureties.) 

(1)  At  least  three  sureties  required. 

(2)  Fill  in  statutory  amount  required  for  the  office  specified. 

(3)  Elected  or  appointed. 

(4)  Specify  the  bounden  obligation. 

§  148.     Powers  and  duties — Contestants 

"The  clerk  of  each  of  the  courts  shall  exercise  the  powers  and 
perform  the  duties  conferred  and  imposed  upon  him  by  the  stat- 
utes of  this  state,  and  by  the  common  law.  In  the  performance  of 
his  duties,  he  shall  be  under  the  direction  of  his  court."  15 

"Justices  of  the  peace  and  other  judicial  tribunals  having  no 
clerk,  and  the  clerks  of  every  court  of  record,  shall,  upon  request, 
and  bein'g  paid  the  lawful  fees  therefor,  furnish  an  authenticated 
transcript  of  the  proceedings  containing  the  judgment  or  final  or- 
der in  said  court,  or  of  a  case-made,  to  either  of  the  parties  to  the 
same,  or  to  any  person  interested  in  procuring  such  transcript."  16 

The  clerk's  duty  in  respect  to  recording  proceedings,  orders,  judg- 
ments, and  decrees  is  ministerial,  and  he  acts  under  the  exclusive 
jurisdiction  and  direction  of  his  court.17  He  is  the  officer  of  the 
court,  and  in  order  to  properly  perform  the  duties  devolving  on  him 


15  Rev.  Laws  1910,  §  5335. 

16  Rev.  Laws  1910,  §  5250. 

17  Hirsh  v.  Twyford,  139  P.  313,  40  Okl.  220. 


(77) 


§§    148-149  COURTS  AND  COURT   OFFICERS  (Ch.  1 

by  law  it  is  the  duty  of  the  judge  of  the  court  to  recognize  him  as 
such.18 

An  order  of  a  district  court,  directing  the  clerk  to  pay  certain 
money  to  a  person  named  is  a  final  order,  and  erroneous,  where 
the  record  shows  that  the  fund  never  came  into  the  hands  of  the 
clerk,  but  into  those  of  her  predecessor,  and  was  paid  out  by  him 
under  order  of  the  court.19 

The  judge  should  recognize  as  clerk  the  person  holding  the  prima 
facie  title  to  the  office.20 

Where  two  persons  claiming  title  to  the  office  of  clerk  present 
their  credentials  to  the  judge  of  the  district  court,  and  each  request 
the  judge  to  recognize  him  as  such  clerk,  it  is  the  duty  ol  the 
judge  to  examine  such  credentials  to  determine  which  one  of  the 
claimants  holds  the  prima  facie  title  to  the  office,  and  such  examina- 
tion does  not  constitute  passing  on  the  title  to  public  office.21 

§  149.     Liabilities 

A  clerk  receiving  moneys  by  virtue  of  his  office  holds  the  same 
in  trust.22  His  bond  is  liable  for  all  moneys  coming  into  his  hands 
as  such  clerk  under  the  law  and  by  virtue  of  his  office  and  unac- 
counted for  by  him.23 

Deposits  made  in  court  cases  to  secure  costs  which,  as  earned, 
belong  to  the  county,  are  sums  coming  into  the  clerk's  hands  by  vir- 
tue of  his  office,  as  are  also  sheriff's  and  stenographer's  fees  coming 
into  the  hands  of  a  clerk  of  court  and  belonging  to  the  county  are 
received  by  virtue  of  his  office,  and  hence  his  bond  is  liable  for  the 
failure  to  pay  over  same.24 

Under  the  statute  authorising  actions  on  official  bonds,25  the 
drawer  of  a  certified  check  deposited  in  lieu  of  bail,  can  sue  on  the 
official  bond  of  a  district  clerk  who  has  cashed  such  check  and  em- 


18Matney  v.  King,  93  P.  737,  20  Okl.  22;    Ramsey  v.  Same,  93  P.  754,  20 
Okl.  67. 

19  Sanderson  v.  Sanderson,  186  P.  791,  91  Kan.  98. 

20  Sanderson  v.  Sanderson,  136  P.  791,  91  Kan.  98. 

21  Sanderson  v.  Sanderson,  136  P.  791,  91  Kan.  98. 

•2  Fidelity  &  Deposit  Co.  of  Maryland  v.  Rankin,  124  P.  71,  33  Okl.  7. 
23  Hughes  v.  Board  of  Com'rs  of  Oklahoma  County,  50  Okl.  410,  150  P. 
1029;    Southwestern  Surety  Ins.  Co.  v.  Neal   (Okl.)   197  P.  439. 

-*  Hughes  v.  Board  of  Com'rs  of  Oklahoma  County,  50  Okl.  410,  150  P.  1029. 
25  Rev.  Laws  1910,  §  5349. 

(78) 


Art.  2)  OTHER    COURT    OFFICERS  §§    149-152 

bezzled  the  proceeds,  though  the  clerk's  bond  was  executed  to  the 
state  of  Oklahoma  as  obligee.28  That  the  statute  does  not  authorize 
the  clerk  to  accept  a  certified  check  in  lieu  of  a  cash  deposit  men- 
tioned in  an  order  admitting  to  bail  constitutes  no  defense  in  such 
action.27 

No  action  will  lie  against  a  clerk  in  charge  of  the  records  of 
mechanics'  and  other  liens,  for  a  false  certificate  furnished  a  pur- 
chaser that  there  were  no  liens  against  the  property  purchased, 
where  the  only  lien  is  one  for  materials  furnished  the  grantor,  which 
was  filed  against  the  land  after  it  had  been  conveyed  to  the  pur- 
chaser with  warranty,  for  he  cannot  be  injured  by  such  certificate.28 

§  150.     Deputies 

A  deputy  clerk  may  perform  the  purely  ministerial  duties  of  the 
clerk  in  recording  the  list  of  jurors  on  the  journal  of  the  court  and 
certifying  to  the  correctness  thereof.29 

§  151.     Vacancies 

Where  the  clerk  is  suspended  under  the  statute  authorizing 
same,30  the  county  commissioners  may  fill  the  temporary  vacancy, 
and  the  appointee,  after  qualifying,  may  perform  duties  of  office 
during  suspension.31 

§  152.     Fees  and  salaries 

The  federal  fee  bill  was  not  continued  in  force  after  statehood, 
and  hence  clerks  of  courts  of  the  state  were  not  entitled^to  receive 
a  fee  of  $5  per  day  for  attending  court.32 

The  court  clerk  receives  the  same  salary  as  did  the  district  court 
clerk.33 

-'6  Ahsmuhs  v.  Bowyer,  39  Okl.  376,  135  P.  413,  50  L.  R.  A.  (N.  S.)  1060. 

27  Id. 

28  United  States  Wind  Engine  &  Pump  Co.  v.  Linville,  23  P.  597,  43  Kan. 
455. 

29  Tegeler  v.  State,  9  Okl.  Cr.  138,  130  P.  1164. 

30  Rev.  Laws  1910,  §§  5605,  5606. 

31  Smith  v.  State,  13  Okl.  Cr.  619,  166  P.  463. 

32  Hughes  v.  Board  of  Com'rs  of  Oklahoma   County,  50  Okl.  410,  150  P. 
1029;    Board  of  Com'rs  of  Grant  County  v.  Ernest,  45  Okl.  725,  147  P.  322; 
Hughes  v.  Board  of  Com'rs  of  Oklahoma  County,  50  Okl.  410,  150  P.  1029. 

An  allowance  by  the  board  of  county  commissioners  of  $5  per  day  to  the 

83  Board  of  Com'rs  of  Oklahoma  County  v.  Beaty,  53  Okl.  393,  156  P.  1181 ; 
In  re  Laing,  143  P.  665,  43  Okl.  598. 

(79) 


§§    152-156  COURTS  AND  COURT  OFFICERS  (Ch.  1 

The  clerk  cannot  recover  for  making  a  transcript  different  from 
that  ordered.34 

Where  the  county  commissioners  paid  a  district  court  clerk  a  per 
diem  fee  for  attending  sessions  for  which  there  was  no  statutory 
authority,  such  payments  may  be  recovered  from  the  clerk.86 

§  153.     Books  to  be  kept 

"The  clerk  of  the  district  court  shall  keep  an  appearance  docket, 
a  trial  docket,  a  journal,  a  judgment  docket,  an  execution  docket, 
and  such  other  books  as  may  be  ordered  by  the  court  or  required 
by  law."  8<s 

§  154.    Appearance  docket 

"On  the  appearance  docket  he  shall  enter  all  actions  in  the  order 
in  which  they  are  brought,  the  date  of  the  summons,  the  time  of 
the  return  thereof  by  the  officer,  and  his  return  thereon,  the  time 
of  riling  the  petition,  and  all  subsequent  pleadings  and  papers,  and 
an  abstract  of  all  judgments  and  orders  of  the  court."  S7 

§  155.     Indorsements 

"He  shall  indorse  upon  every  paper  filed  with  him,  the  day  of 
filing  it;  and  upon  every  order  for  a  provisional  remedy,  and  upon 
every  undertaking  given  under  the  same,  the  day  of  its  return  to 
his  office."  38 

§  156.     Execution  docket  v 

"In  the  execution  docket  the  clerk  shall  enter  all  executions  as 
they  are  issued  by  him.  The  entry  shall  contain  the  names  of  the 
parties,  the  date  and  amount  of  the  judgment  and  costs,  the  date 
of  the  execution,  and  the  name  of  the  county  to  which  it  is  issued. 
The  clerk  shall  also  record  in  full  the  return  of  the  sheriff  to  each 
execution ;  and  such  record  shall  be  evidence  of  such  return,  if  the 
original  be  mislaid  or  lost."  39 


district  clerk  for  attending  court  held  void.  Board  of  Com'rs  of  Grant  Coun- 
ty v.  Ernest,  45  Okl.  725,  147  P.  322. 

s*  Lawson  v.  Guthrie,  137  P.  1186,  40  Okl.  598. 

35  Harper  v.  Board  of  Com'rs  of  Oklahoma  County,  54  Okl.  545,  149  P. 
1102. 

a6  Rev.  Laws  1910,  §  5322.  ««  Rev.  Laws  1910,  §  5331. 

»7Rev.  Laws  1910,  §  5323.  «9Rev.  Laws  1910,  §  5326. 

(80) 


Art.  2)  OTHER  COURT   OFFICERS  §§    157~162 

§  157.    Judgment  docket 

"The  judgment  docket  shall  be  kept  in  the  form  of  an  index  in 
which  the  name  of  each  person  against  whom  judgment  is  rendered 
shall  appear  in  alphabetical  order,  and  it  shall  be  the  duty  of  the 
clerk  immediately  after  the  rendition  of  a  judgment  to  enter  on 
said  judgment  docket  a  statement  containing  the  names  of  the  par- 
ties, the  amount  and  nature  of  the  judgment  and  costs,  and  the 
date  of  its  rendition,  and  the  date  on  which  said  judgment  is  entered 
on  said  judgment  docket;  and  if  the  judgment  be  rendered  against 
several  persons,  the  entry  shall  be  repeated  under  the  name  of 
each  person  against  whom  the  judgment  is  rendered  in  alphabet- 
ical order."  40 

§  158.    Journal 

"On  the  journal  shall  be  entered  the  proceedings  of  the  court 
of  each  day,  and  all  orders  of  the  judge  in  vacation  or  at  chambers, 
and  also  all  judgments  entered  on  confession  or  default."  41 

§  159.     Files 

"It  is  the  duty  of  the  clerk  of  each  of  the  courts  to  file  together, 
and  carefully  preserve  in  his  office,  all  papers  delivered  to  him  for 
that  purpose,  in  every  action  or  special  proceeding."  42 

§  160.     Cases — Court  records 

"He  shall  keep  the  papers  in  each  case,  separate,  carefully  en- 
veloped in  a  wrapper,  labeled  with  the  title  and  number  of  the 
case."  43 

"He  shall  keep  the  records  and  books  and  papers  appertaining 
to  the  court,  and  record  its  proceedings."  44 

§  161.     Application  of  statute 

"The  provisions  of  this  article  shall  as  far  as  they  are  applicable, 
apply  to  the  clerk  of  all  courts  of  record."  45 

§  162.    Journal  entry — Order  of  sale — Homestead — Insane  spouse 

If  the  court  shall  make  an  order  authorizing  the  sale  of  the 

homestead  where  one  spouse  is  insane,  such  order  "shall  be  entered 

upon  the  minutes  of  the  court,  and  thereafter  the  sale,  conveyance 

40  Rev.  Laws  1910,  §  5325.  43  Rev.  Laws  1910,  §  5330. 

41  Rev.  Laws  1910,  §  5324.  44  Rev.  Laws  1910,  §  5333. 

42  Rev.  Laws  1910,  §  5329.  45  Rev.  Laws  1910,  §  5334. 

HON.PL.&  PRAC.— 6  (81) 


§§    163-165  COURTS  AND  COURT   OFFICERS  (Ch.  1 

or  mortgage  made  in  pursuance  of  such  order  shall  be  as  valid  and 
effectual  as  if  the  property  affected  thereby  was  the  absolute  prop- 
erty in  fee  simple  of  the  person  making  such  sale,  conveyance  or 
mortgage."  46 

DIVISION  III. — SHERIFFS  AND  OTHER  PEACE  OFFICERS 
§  163.     Sheriffs  and  deputies 

The  duties  and  salary  of  sheriffs  and  their  deputies  are  prescribed 
by  statute.47 

§  164.     Service  of  writs  and  process — Amercement 

"The  sheriff  in  person,  or  by  his  undersheriff  or  deputy,  shall 
serve  and  execute,  according  to  law,  all  process,  writs,  precepts 
and  orders  issued  or  made  by  lawful  authorities,  and  to  him  directed, 
and  shall  attend  upon  the  several  courts  of  record  held  in  his  coun- 
ty." 48 

"He  shall  execute  every  summons,  order  or  other  process,  and 
return  the  same  as  required  by  law ;  and  if  he  fail  to  do  so,  unless 
he  make  it  appear  to  the  satisfaction  of  the  court  that  he  was  pre- 
vented by  inevitable  accident  from  so  doing,  he  shall  be  amerced 
by  the  court  in  a  sum  not  exceeding  one  thousand  dollars,  upon 
motion  and  ten  days'  notice,  and  shall  be  liable  to  the  action  of  any 

person  aggrieved  by  such  failure."  49 

, .  / 

§  165.     Substitute  for  sheriff 

"The  court  or  judge,  or  any  clerk,  in  the  absence  of  the  judge 
from  the  county,  for  good  cause,  may  appoint  a  person  to  serve 
a  particular  process  or  order,  who  shall  have  the  same  power  to 
execute  it  which  the  sheriff  has.  The  person  may  be  appointed 
on  the  application  of  the  party  obtaining  the  process  or  order,  and 
the  return  must  be  verified  by  affidavit.  He  shall  be  entitled  to 
the  same  fees  allowed  to  the  sheriff  for  similar  services."  50 


4(3  Rev.  Laws  1910,  §  1149. 

*7  Rev.  Laws  1910,  §g  3198-3202 ;    Sess.  Laws  1910-11,  pp.  27-29,  §§  1-4 ; 
Sess.  Laws  1921,  p.  82. 

48  Rev.  Laws  1910,  8  1699. 

49  Rev.  Laws    1910,  §  5337. 

50  Rev.  Laws  1910,  §  5320. 

Where  a  sheriff  is  in  his  office  ready  to  serve  process  issued  by  the  probate 
judge,  and  the  sheriff's  office  is  in  the  same  building,  the  probate  judge  is 

(82) 


Art.  2)  OTHER    COURT   OFFICERS  §§    165-166 

A  requirement  that  the  appointment  of  a  deputy  sheriff  shall  be 
filed  with  the  county  clerk,  is  directory,  and  failure  to  file  the  ap- 
pointment actually  made  will  not  invalidate  it  nor  the  official  acts  of 
the  deputy.61 

The  appointment  of  a  person  by  the  sheriff  to  serve  a  summons 
must  be  in  writing.52 

§  166.     Fees  and  salaries 

The  fees  and  salaries  of  sheriffs,  constables,  jailers,  and  deputies 
have  been  recently  fixed  by  statute.53 

A  county  is  not  liable  to  a  deputy  sheriff  for  $3  per  day  for  serv- 
ices as  guard  while  carrying  persons  adjudged  insane  to  the  state 
hospital  for  the  insane.54 

Where  a  sheriff  takes  charge  of  property  under  an  order  of  re- 
plevin, he  can  only  be  allowed  for  caring  for  the  same  while  he  is 
in  possession  thereof,  and  his  return  on  an  order  of  replevin  is  con- 
clusive as  to  him  as  to  the  length  of  time  such  property  was  in 
his  possession.55 

A  sheriff  is  not  entitled  to  a  commission  in  connection  with  a 
foreclosure  sale,  where  the  mortgagee  is  the  purchaser,  and  the 
entire  amount  of  the  purchase  price  is  applied  as  a  credit  upon  the 
judgment.58 

There  is  no  provision  of  law  requiring  the  payment  of  fees  in 
advance  to  an  officer  for  serving  subpoena  in  a  criminal  case.57 

without  authority  to  appoint  a  special  sheriff  to  serve  the  process.     Skinner 
v.  Board  of  Com'rs  of  Cowley  County,  66  P.  635,  63  Kan.  557. 

An  appointment  of  a  special  officer  to  serve  process  in  attachment,  made 
by  the  clerk  of  the  district  court,  upon  an  application  which  did  not  show 
that  the  court  was  not  in  session  in  the  county,  or  that  the  judge  was  ab- 
sent therefrom,  and  which  failed  to  show  that  the  sheriff  and  his  deputies 
were  interested  in  the  proceeding,  out  of  the  county,  or  in  any  way  disquali- 
fied to  act,  but  contained  as  an  only  reason  that  the  plaintiffs'  attorney  had 
looked  with  diligence  for  the  sheriff  or  his  deputy,  but  in  vain,  and  that  it 
was  important  that  papers  should  be  served  at  once,  is  unauthorized,  and  a 
levy  thereunder  invalid.  Dolan  v.  Topping,  32  P.  1120,  51  Kan.  321. 

51  Orchard  v.  Peake,  77  P.  281,  69  Kan.  510. 

52  Baxter  v.  Yeagley,  8  Kan.  App.  657,  56  P.  509.     See  Rev.  Laws  1910,  §§ 
1695,  1696. 

53  Sess.  Laws  1921. 

54  Board  of  Com'rs  of  Garfield  County  v.  Bebb,  52  Okl.  18,  152  P.  595. 

55  Allen  Dudley  &  Co.  v.  Clevenger,  19  Okl.  208,  91  P.  908. 
se  Berry  v.  Kiefer,  38  Okl.  377,  133  P.  1126. 

57  Thompson  v.  State,  118  P.  614,  6  Okl.  Cr.  334. 

(83) 


§§    166-168  COURTS  AND  COURT  OFFICERS  (Ch.  1 

A  county  is  liable  to  a  deputy  sheriff  for  only  60  per  cent,  of  the 
mileage  earned  by  him  in  serving  or  attempting  to  serve  criminal 
process.68 

§  167.     Power  and  duty 

The  right  of  a  sheriff  who  has  sold  property  at  judicial  sale  to 
sue  the  purchaser  for  the  amount  of  the  bid,  after  paying  the 
amount  to  which  the  judgment  creditor  was  entitled  out  of  the  pro- 
ceeds of  the  sale,  is  not  defeated  by  the  expiration  of  his  term  of 
office.69 

The  sheriff  of  a  county  in  which  judgment  was  entered,  and 
from  a  portion  of  which  a  new  county  was  formed,  had  no  author- 
ity to  levy  on  and  sell  real  estate  in  the  new  county;  and  a  deed 
executed  by  him  under  an  order  of  sale  was  void.60 

'A  sheriff  in  whose  hands  an  attachment  order  is  placed,  and  to 
whom  personal  property  is  pointed  out  by  the  creditor  as  belong- 
ing to  the  debtor,  and  to  whom  a  bond  is  tendered  indemnifying 
him  against  the  consequences  of  a  levy  on  such  property,  is  not,  by 
reason  of  such  facts,  required  to  make  the  levy,  if  in  good  faith 
he  believes  it  would  be  wrongful.  He  may  refuse  to  make  it,  and 
in  justification  of  his  refusal  may  prove  the  existence  of  valid  liens 
on  the  property  to  an  amount  exceeding  its  value.61 

§  168.     Liability — Amercement 

An  "amercement"  is  a  money  penalty  in  the  nature  of  a  fine 
imposed  on  an  officer  for  some  misconduct  or  neglect  of  duty,  and 
is  a  statutory  proceeding,  and  the  statutes  relating  thereto  must  be 
strictly  construed.62  Before  an  officer  can  be  amerced,  it  must  ap- 
pear that  a  valid  judgment  has  been  entered,  that  it  has  not  been 
satisfied,  that  the  creditor  or  some  one  acting  for  him  has  filed  a 
praecipe  for  execution,  that  an  execution  lias  been  delivered  to  the 
officer,  and  he  has  failed  to  serve  or  return  it.63 

58  Board  of  Com'rs  of  Grady  County  v.  Castleman  (Okl.)   166  P.  891. 

59  Trustees',  Executors'  &  Securities'  Ins.  Corp.  v.  Bowling,  44  P.  42,  2  Kan. 
App.  770. 

60  Farmers'  State  Bank  of  Ingersoll  v.  Wilson,  127  P.  395,  34  Okl.  755. 

61  Phelps,  Dodge  &  Palmer  Co.  v.  Skinner,  65  P.  667,  63  Kan.  364. 
«2  Stein  v.  Scanlan,  34  Okl.  801,  127  P.  483,  42  L.  R.  A.  (N.  S.)  895. 
83  Id. 

Where  a'  judgment  was  entered  for  $211,  and  no  costs,  and  the  execution 
showed  the  judgment  to  be  for  $211  and  $184  costs,  and  no  effort  was  made 

(84) 


Art.  2)  OTHER  COURT  OFFICERS  §   168 

Where  property  is  struck  off  to  a  bidder  who  refuses  to  pay  the 
amount  of  his  bid,  and  the  sheriff,  instead  of  rescinding  the  con- 
tract and  reselling  the  property,  treats  the  sale  as  consummated,  and 

to  supply  the  omission,  there  was  such  a  variance  as  would  prevent  the  court 
from  entering  a  judgment  in  amercement  for  the  full  amount.  Stein  v.  Scan- 
Ian,  34  Okl.  801,  127  P.  483,  42  L.  R.  A.  (N.  S.)  895.  Where  a  judgment 
recites  that  it  was  rendered  May  11,  1909,  and  execution  shows  that  it  was 
rendered  May  13,  1909,  the  court  will  not  render  judgment  of  amercement 
against  the  sheriff  for  failure  to  return  the  execution.  Id. 

Where  an  execution  shows  that  the  judgment  on  which  it  purports  to  have 
been  issued  is  for  an  amount  greater  than  the  actual  judgment  in  the  case, 
the  officer  to  whom  it  is  issued  is  not  liable  for  neglecting  to  return  it  until 
after  its  return  day.  Fisher  v.  Franklin,  16  P.  341,  38  Kan.  251. 

Where*  by  mistake  of  the  clerk,  certain  costs  are  erroneously  taxed  and 
indorsed  on  an  execution,  the  sheriff,  after  selling  land  under  it,  cannot  be 
amerced  at  the  instance  of  the  execution  creditor  for  retaining  the  amount 
of  such  costs.  Kothman  v.  Prest,  8  P.  228,  34  Kan.  179. 

Under  a  judgment  entered  October  14,  1885,  the  sheriff  is  not  liable  to 
amercement  for  failing  to  serve  and  return,  in  60  days,  an  execution  recit- 
ing the  judgment  as  rendered  on  October  14,  1886.  Bittman  v.  Mize,  25  P. 
S75,  45  Kan.  450. 

Where  a  plaintiff  is  seeking  to  amerce  a  sheriff  for  his  neglect  or  failure  in 
returning  an  execution,  the  execution,  to  sustain  such  a  proceeding,  must 
conform  strictly  to  the  judgment  rendered.  Fuller  v.  Wells,  Fargo  &  Co.,  22 
P.  561,  42  Kan.  551 ;  Gleason  v.  Itten,  34  P.  892,  52  Kan.  218. 

On  a  motion  to  amerce  a  sheriff  for  failure  to  serve  an  execution,  where  it 
appears  that  the  judgment  on  which  the  execution  was  based  had  been  in 
fact  satisfied,  and  where  it  further  appears  that  at  the  time  of  the  hearing 
of  the  motion  to  amerce,  a  judgment  had  been  duly  entered  canceling  the 
judgment  on  which  the  execution  issued,  the  trial  court  did  not  err  in  over- 
ruling the  motion.  Union  Stove  &  Mach.  Works  v.  Caswell,  32  P.  362,  50  Kan. 
787. 

Where  the  execution  commands  the  sheriff  to  collect  a  sum  in  excess  of 
that  named  in  the  judgment,  the  sheriff  cannot  be  amerced  for  failure  to 
return  the  same  within  the  time  allowed.  Reese  v.  Rice,  41  P.  218,  1  Kan. 
App.  311.  In  proceedings  to  amerce  a  sheriff  for  failure  to  return  an  execu- 
tion within  60  days,  an  affidavit  of  the  clerk  of  court,  who  received  the  execu- 
tion by  mail,  that  it  arrived  June  12th,  and  the  fact  that  the  postmark  on 
the  envelope  in  which  the  execution  was  returned  showed  that  it  was  mailed 
June  llth,  do  not  overcome  the  indorsement  on  the  writ  that  it  was  returned 
June  4th,  and  the  indorsement  of  the  return  by  the  clerk  of  the  court,  with 
which  it  was  filed  before  being  mailed  that  it  was  filed  on  that  day,  and  the 
affidavit  of  the  sheriff  that  it  was  mailed  on  the  day  on  which  it  was  re- 
turned. Id. 

Where  the  successful  bidder  at  a  sheriff's  sale  repudiated  the  sale  on  ac- 
count of  an  omission  in  the  advertisement,  and  the  sheriff  duly  returned  the 
order  of  sale,  with  a  certificate  of  the  facts  thereon,  and  afterwards  another 
order  of  sale  was  issued,  the  fact  that  the  property  sold  for  a  much  less  sum 
than  at  the  first  sale  did  not  constitute  a  failure  on  the  part  of  the  sheriff  to 

(85) 


§    168  COURTS  AND  COURT  OFFICERS  (Ch.  1 

surrenders  possession  of  the  property  to  the  purchaser,  he  thereby 
makes  himself  liable  for  the  amount  of  the  bid.64 

When  a  sheriff  fails  to  make  return  of  a  writ  of  execution,  as  re- 
quired by  statute,  the  court  must  amerce  him  whether  his  omission 
results  from  willful  wrong  or  mere  neglect,  and  whether  it  has  re- 
sulted in  actual  injury  or  not.65 

Where  a  special  execution  commands  the  sheriff  to  pay  all  taxes 
on  the  land,  and  a  purchaser  agrees  with  the  judgment  creditor, 
before  confirmation  of  the  sale,  to  pay  all  delinquent  taxes,  and,  in 
pursuance  thereof,  buys  the  outstanding  tax  certificates,  the  sheriff 
having  no  authority,  after  confirmation  of  the  sale,  to  pay  the  taxes, 
if  he  does  so,  with  knowledge  of  all  the  facts,  and  against  the  ob- 
jections of  the  party  interested,  he  may  be  amerced.66 

Where  on  demand  for  the  return  of  property  levied  on,  which 
property  exceeds  the  amount  exempt,  there  is  no  effort  to  make 
a  selection  the  judgment  debtor  cannot  recover  damages  in  a  sub- 
sequent replevin  action  against  the  officer.07 

Where  a  judgment  is  rendered  in  one  county,  and  an  execution 
is  issued  thereon  to  the  sheriff  of  another  county,  and  such  sher- 
iff fails  to  return  the  execution,  as  required  by  law,  proceedings 
to  amerce  such  sheriff  can  be  maintained  only  in  the  court  out  of 
which  the  execution  was  issued.68 

In  proceedings  against  a  sheriff  for  removal  for  corruptly  refusing 
to  collect  a  tax  warrant,  it  was  not  necessary  to  show  that  the  tax 
warrant  was  in  all  respects  legal,  if  it  was  regular  on  its  face  and  is- 
sued by  a  competent  officer  in  discharge  of  his  duty.69 

Where  the  court  has  jurisdiction  over  the  subject-matter,  and 
the  process  is  regular  on  its  face,  it  affords  complete  protection  to 
the  officer  executing  it.70 

execute  the  first  order,  so  as  to  subject  him  to  the  amercement.  Moore  v. 
Burdge,  52  P.  912,  7  Kan.  App.  80. 

64  Walker  v.  Braden,  9  P.  613,  34  Kan.  660. 

65  Henderson-Sturges   Piano  Co.   v.   Smith,  33  Okl.  335,  125  P.  454,  citing 
Rev.  Laws  1910,  §  5180. 

66  Kothman  v.  Prest,  8  P.  228,  34  Kan.  179. 

67  Parsons  v.  Evans,  44  Okl.  751,  145  P.  1122,  L.  R.  A.  1915D,  381. 

68  Fisher  v.  Franklin,  16  P.  341,  38  Kan.  251;    Reynolds  v.  Nelson,  19  P. 
353,  40  Kan.  41. 

09  Rutter  v.  Territory,  68  P.  507,  11  Okl.  454. 

70  Holdredge  v.  McCombs,  56  P.  536,  8  Kan.  App.  663. 

It  is  the  duty  of  a  ministerial  officer  to  whom  a  search  warrant  is  directed 

(86) 


Art.  2)  OTHER   COURT   OFFICERS  §§    168-169 

However,  where  a  constable  illegally  exercises  authority  under 
a  legal  writ  of  replevin,  so  as  to  warrant  the  conclusion  that  he 
intended  from  the  first  to  use  the  authority  as  a  cover  for  illegal 
conduct,  he  is  liable  as  a  trespasser  ab  initio.71 

§  169.     Official  bonds 

Sureties  on  the  official  bond  of  a  sheriff  are  only  answerable  for 
acts  of  their  principal  while  engaged  in  performance  of  some  duty 
imposed  on  him  by  law,  or  for  an  omission  to  perform  such  duty. 
That  an  officer,  in  doing  an  act  claimed  to  be  a  breach  of  his  bond, 
claimed  to  act  in  an  official  capacity,  is  not  sufficient  to  show  color 
of  office,  without  proof  that  he  was  armed  with  a  writ,  or,  if  the 
writ  was  void,  that  there  was  a  statute  authorizing  the  act  to  be 
done  without  process.72 

A  sale  was  made  and  duly  returned,  but  before  the  confirmation 
thereof  the  term  of  office  of  the  sheriff  expired,  and  he  was  re-elected 
to  the  office.  Afterwards  such  sale  was  confirmed  and  the  property 
•conveyed  to  the  purchaser.  The  court  held  that  the  bondsmen  on 
the  sheriff's  bond  for  his.  second  term  are  not  liable  for  the  money 
the  sheriff  ought  to  have  received,  but  did  not  receive,  during  his 
first  term  of  office.73 

to  execute  the  writ  as  demanded,  if  the  same  is  issued  by  an  officer  having 
authority,  and  is  regular  on  its  face,  and  in  such  a  case  the  writ  is  a  protec- 
tion to  the  officer.  Kniseley  v.  Ham,  136  P.  427,  39  Okl.  623,  49  L.  R.  A. 
(N.  S.)  770. 

Where  a  search  warrant  was  void  because  wrongfully  issued,  it  could  af- 
ford no  justification  to  any  officer  in  making  a  search.  Duncan  v.  State,  11 
Okl.  Cr.  217,  144  P.  629.  An  attempt  to  make  a  second  search  on  a  warrant 
once  served,  makes  a  trespasser  of  the  officer  attempting  the  search,  though 
the  warrant  was  originally  valid.  Id. 

71  Wurmser  v.  Stone,  40  P.  993,  1  Kan.  App.  131. 

72  Jordan  v.  Neer,  125  P.  1117,  34  Okl.  400. 

Coiistables. — Sureties  on  the  bond  of  a  constable  are  answerable  only  for 
his  acts  while  engaged  in  some  duty  imposed  by  law,  or  from  omission  to 
perform  such  duty.  Inman  v.  Sherrill,  116  P.  426,  29  Okl.  100. 

Constables  and  sureties  are  liable  for  misapplication  of  funds  from  check 
seized  under  attachment,  where  constable  serves  copy  of  attachment  and 
takes  possession  of  property,  though  he  fails  to  properly  complete  levy  and 
return.  Williams  v.  Arends,  57  Okl.  556,  157  P.  313. 

A  redelivery  bond  taken  by  a  constable,  who  did  not  levy  the  writ  and  who 
has  no  possession  thereunder,  is  not  taken  by  him  in  his  official  capacity,  and 
his  approval  imposes  no  liability  on  his  official  bond.  Burton  v.  Doyle  (Okl.) 
165  P.  169. 

73  Studebaker  v.  Johnson,  21  P.  271,  41  Kan.  326,  13  Am.  St.  Rep.  2S7. 

(87) 


§§    170-171  COURTS  AND   COURT  OFFICERS  (Ct).  1 

§  170.    — —    Acts  of  deputy 

Where  a  deputy  sheriff  makes  a  levy  on  property  not  authorized 
by  the  writ  of  execution,  the  sheriff  is  also  responsible  with  him 
for  damages.74 

That  a  deputy  sheriff  becomes  angered  in  the  discharge  of  his 
duty  does  not  deprive  his  subsequent  acts  of  their  official  char- 
acter. Nor  does  the  fact  that  he  momentarily  abandons  his  efforts 
to  arrest  a  person  without  a  warrant  render  the  resumption  of 
this  duty  any  the  less  an  official  act.  Where  a  deputy  sheriff,  in 
attempting  to  make  an  arrest  without  a  warrant,  kills  a  person 
guilty  of  a  misdemeanor,  to  prevent  him  from  escaping,  the  sheriff 
and  his  bondsmen  are  liable.75 

Where  a  person  is  illegally  shot  by  deputy  sheriffs,  the  sheriff 
may  be  made  liable  by  proof  that  he  was  also  present,  aiding,  abet- 
ting, and  encouraging  the  act  of  the  deputies.76 

§  171.    Wrongful  attachment 

Where  a  sheriff  levies  an  attachment  on  part  of  a  stock  of  goods, 
and  holds  possession  of  the  entire  stock,  the  fact  that  other  levies 
were  subsequently  made  by  him  on  the  other  portions  of  the  same 
stock  did  not  affect  the  right  of  action  of  the  owners  for  the  wrong- 
ful possession  first  taken,  which  was  never  surrendered.  Where 
he  has  stated  that  he  will  assume  all  responsibility,  a  right  of  action 
for  conversion  arises  in  favor  of  the  owners.77 

Where  a  writ  of  attachment  is  issued  to  a  county  other  than  the 
one  in  which  the  action  was  brought,  and  the  officer  executes  it  as 
provided  by  law,  he  is  not  liable  in  damages  because  the  land  was, 
after  the  levy,  fold  by  an  owner  to  an  innocent  purchaser,  whereby 
plaintiff  lost  his  security.78 

An  officer  who  has  levied  a  wrongful  attachment  on  a  stock  of 
merchandise,  and  excluded  the  owner  from  the  store,  is  respon- 
sible for  whatever  articles  lie  allows  others  to  take  therefrom, 
though  he  has  not  levied  on  them,  and  they  be  taken  under  process 
against  another  person.79 

74  Frankhouser  v.  Cannon,  32  P.  379,  50  Kan.  621. 
7  5  Meek  v.  Tilghman,  55  Okl.  208,  154  P.  1190. 
70  Jordan  v.  Neer,  125  P.  1117,  34  Okl.  400. 

77  Burdge  v.  Kelchner,  72  P.  232,  66  Kan.  642. 

78  Mount  v.  Trammel   (Okl.)  175  P.  232,  citing  Rev.  Laws  1910,  §  4819. 

79  Simpson  v.  Voss,  1  P.  601,  31  Kan.  227. 

(88) 


Art.  2)  OTHER   COURT   OFFICERS  §§    171-172 

An  officer  who  wrongfully  levies  attachment  on  and  sells  the  sep- 
arate property  of  a  wife  in  an  action  against  her  husband  is  guilty 
of  conversion  and  liable  in  damages.80 

A  writ  of  attachment  directed  against  the  former  owner  of  certain 
grain  afforded  no  justification  to  the  sheriff  for  its  seizure  in  the 
hands  of  a  subsequent  purchaser.81 

A  sheriff,  being  in  possession  of  a  stock  of  goods  by  virtue  of  a 
levy  made  in  pursuance  of  writs  of  attachment  in  his  hands,  is  not 
responsible  to  a  subsequent  chattel  mortgagee  for  conversion,  when 
a  receiver,  duly  appointed  by  the  court  from  which  the  orders  of 
attachment  issued,  takes  exclusive  control  and  possession  of  the 
goods,  sells  the  same,  and  receives  the  proceeds.82 

The  fact  that  a  small  amount  was  due  from  the  mortgagor  to  the 
holder  of  a  prior  mortgage,  who  was  in  possession  of  the  property, 
did  not  affect  the  right  of  a  subsequent  mortgagee  to  recover  for 
a  conversion  of  the  property  by  a  sheriff,  under  a  writ  of  attach- 
ment.83 

§  172.     Indemnity  bonds 

An  execution  creditor,  who  has  indemnified  the  sheriff,  must  give 
instructions  when  asked  for,  and  when  he  fails  to  give  such  in- 
structions the  sheriff  may  proceed  according  to  his  best  judgment, 
and  the  indemnitor  will  be  liable  for  damage  sustained  by  the 
sheriff.84 

It  is  a  defense  to  an  action  on  an  indemnity  bond  given  an  officer 
by  an  attachment  creditor  that  through  gross  laches  the  officer 
failed  to  notify  the  creditor  of  a  suit  by  a  third  person  to  recover 
the  goods  attached,  and  permitted  such  person  to  take  judgment 
by  default,  pursuant  to  an  agreement  between  the  two  that  the 
officer  should  recover  the  amount  of  the  judgment  from  the  cred- 
itor.85 

The  obligee  in  an  indemnity  bond  conditioned  to  save  him  harm- 
less from  any  damages  cannot  sue  thereon  until  he  has,  by  the 
payment  of  the  judgment  against  him,  been  damaged,  but  payment 

80  Sale  v.  Shipp,  58  Okl.  598,  160  P.  502. 

81  Cook  v.  Higgins,  71  P.  259,  66  Kan.  762. 

82  Smith-Frazer  Boot  &  Shoe  Co.  v.  Ware,  28  P.  159,  47  Kan.  483. 

83  Johnson  v.  Anderson,  57  P.  513,  60  Kan.  578. 

84  Ireland  v.  Linn  County  Bank,  103  Kan.  618,  176  P.  103,  2  A.  L.  R.  184. 

85  Armour  Packing  Co.  v.  Orrick,  46  P.  573,  4  Okl.  661. 

(89) 


§§    172-174  COURTS  AND  COURT  OFFICERS  (Ch.  1 

may  be  made  in  the  note  of  the  obligee,  if  accepted  as  actual  pay- 
ment and  satisfaction  of  the  judgment.86 

A  sheriff,  indemnified  for  enforcement  of  execution,  can  recover 
attorney's  fees  in  protecting  his  interests  in  the  personalty  levied 
on,  and  in  resisting  actions  against  him,  and  his  mileage  fees  and 
fees  paid  for  publication  of  notice  of  sale  and  expenses  in  caring 
for  property.87 

When  final  judgment  was  rendered  against  the  sheriff  for  con- 
version in  making  a  wrongful  levy,  the  plaintiff's  right  of  action 
accrued  against  the  surety  on  a  bond  taken  by  the  sheriff  to  indem- 
nify him  in  making  the  levy.88 

DIVISION  IV. — ATTORNEYS 

§  173.  Who  permitted  to  practice — Examinations  for  admission 
"No  person  shall  be  permitted  to  practice  as  an  attorney  and 
counselor  at  law,  or  to  commence,  conduct,  or  defend  any  action 
or  proceeding,  in  which  he  is  not  a  party  concerned,  either  by  using 
or  subscribing  his  own  name,  or  the  name  of  any  other  person, 
unless  he  has  been  previously  admitted  to  the  bar  by  order  of  the 
Supreme  Court,  and  the  court  shall  fix  the  time  when  examina- 
tions shall  take  place,  which  may  be  either  in  term  or  vacation, 
and  shall  fix  the  examination  and  admission  fees,  and  prescribe  and 
publish  rules  to  govern  such  examinations."  89 

§  174.     Applicants  to  conform  to  rules — Fees  for  admission 

"Persons  making  application  for  license  to  practice  law  in  the 
courts  of  this  state  shall  conform  to  the  rules  established  by  the 
Supreme  Court  and  those  applicants  who  are  required  to  be  ex- 
amined shall  at  the  time  of  making  application  for  license  to  prac- 
tice law  pay  to  the  clerk  of  the  Supreme  Court,  in  addition  to  any 

86  Gardner  v.  Cooper,  58  P.  230,  9  Kan.  App.  587,  judgment  affirmed  60  P. 
540,  9  Kan.  App.  587. 

>7  Ireland  v.  Linn  County  Bank,  103  Kan.  618,  176  P.  103,  2  A.  L.  R.  184. 

88  Gardner  v.  Cooper,  60  P.  540,  9  Kan.  App.  587,  affirming  judgment  58 
P.  230,  9  Kan.  App.  587. 

S9Rev.  Laws  1910,  §  234. 

Unqualified  persons  are  prohibited  from  practicing  law.  Sess.  Laws  1919, 
p.  248,  §§  1-3. 

An  attorney  admitted  to  practice  in  the  Indian  Territory  United  States 
Court  was  eligible  to  admission  to  practice  in  the  Oklahoma  Supreme  Court. 
Martindale  v.  Shaha,  51  Okl.  670,  151  P.  1019. 

(90) 


Art.  2)  OTHER   COURT   OFFICERS  -§§    175-177 

fee  that  may  be  required  by  law  for  the  issuance  of  the  license, 
the  sum  of  twelve  dollars.  All  other  applicants  shall  pay  to  the 
clerk  of  the  Supreme  Court  at  the  time  of  filing  their  application  in 
addition  to  the  fee  that  is  or  may  be  required  by  law,  for  the  issu- 
ance of  license,  the  sum  of  five  dollars."  °° 

§  175.     Examination — Commission 

"When  a  person  applies  to  said  court  for  admission  to  the  bar, 
he  shall  be  examined  by  the  court,  or  by  a  commission  appointed 
by  the  court,  and  under  such  rules  and  regulations  as  the  court 
may  provide,  touching  his  fitness  and  qualifications ;  and  if,  on 
such  examination,  the  court  is  satisfied  that  he  is  of  good  moral 
character,  and  has  a  competent  knowledge  of  the  law,  and  suffi- 
cient general  learning,  an  oath  of  office  shall  be  administered  to 
him,  and  an  order  shall  be  made  on  the  journal  that  the  applicant 
be  admitted  to  practice  as  an  attorney  and  counselor  at  law  in  all 
courts  of  record  of  this  state:  Provided,  that  said  court  may  ap- 
point, to  serve  for  one  or  more  years,  a  commission  composed  of 
not  less  than  five  persons  learned  in  the  law  to  assist  in  such  ex- 
amination. The  clerk  of  the  Supreme  Court  shall  be  ex  officio  sec- 
retary of  any  commission  appointed  by  the  Supreme  Court  to  assist 
in  the  examination  of  applicants."  91 

§  176.     Qualifications 

"No  person  shall  be  admitted  to  such  examination  unless  he  is 
twenty-one  years  of  age,  and  is  a  citizen  of  the  United  States,  or 
has  declared  his  intention  of  becoming  a  citizen  thereof;  nor  until 
he  has  produced  from  some  attorney  at  law  a  certificate  setting 
forth  that  the  applicant  is  of  good  moral  character,  and  that  he  has  • 
regularly  and  attentively  studied  law  during  the  period  of  two  years 
previous  to  his  application,  and  that  he  believes  him  to  be  a  person 
of  sufficient  legal  knowledge  and  ability  to  discharge  the  duties  of 
an  attorney  and  counselor  at  law."  92 

§  177.     Persons  not  permitted  to  practice 

"No  person  shall  practice  as  an  attorney  and  counselor  at  law  in 
any  court  of  this  state  who  is  not  a  citizen  of  the  United  States,  or 


po  Rev.  Laws  1910,  §  235.  »2  Rev.  Laws  1910,  8  239. 

91  Rev.  Laws  1910,  §  237. 


(91) 


§§    178-179  COURTS  AND  COURT  OFFICERS  (Ch.  1 

who  holds  a  commission  as  judge  of  any  court  of  record,  or  who  is 
a  sheriff,  coroner,  or  deputy  sheriff;  nor  shall  the  clerk  of  the 
Supreme  Court,  or  the  clerk  of  the  district  court,  or  probate  court, 
or  the  deputy  of  either,  practice  in  the  particular  court  of  which  he 
is  clerk  or  deputy  clerk;  but  nothing  herein  contained  shall  prevent 
any  judge  of  any  of  the  courts  of  this  state  from  finishing  any  busi- 
ness by  him  undertaken  in  the  district,  circuit  or  Supreme  Court 
of  the  United  States,  prior  to  his  election  or  appointment  as  judge ; 
and  an  alien  who  has  declared  his  intention  to  become  a  citizen  of 
the  United  States  may  practice  as  if  he  were  a  citizen."  93 

§  178.    Attorneys  from  other  states — How  admitted 

"Any  person  residing  in  the  state  or  coming  into  the  state  for 
the  purpose  of  making  it  his  permanent  residence,  upon  producing 
satisfactory  evidence  that  he  has  been  regularly  admitted  as  an  at- 
torney and  counselor  at  law  in  another  state  or  territory,  where 
an  examination  in  the  highest  appellate  court  of  the  state  is  required, 
may  be  admitted  to  practice  law  in  this  state  under  such  rules, 
regulations  and  conditions  as  the  Supreme  Court  may  make  and 
publish,  upon  producing  satisfactory  evidence  that  he  is  a  person 
of  good  moral  character,  and  that  he  has  never  been  disbarred."  94 

V 

§  179.    Oath  upon  admission 

"Upon  being  permitted  to  practice  as  attorneys  and  counselors 
at  law,  they  shall,  in  open  court,  take  the  following  oath:  'You 
do  solemnly  swear  that  you  will  support,  protect  and  defend  the 
Constitution  of  the  United  States,  and  the  Constitution  of  the 
state  of  Oklahoma ;  that  you  will  do  no  falsehood  or  consent  that 
any  be  done  in  court,  and  if  you  know  of  any  you  will  give  knowl- 
edge thereof  to  the  judges  of  the  court,  or  some  one  of  them,  that 
it  may  be  reformed ;  you  will  not  wittingly,  willingly  or  knowingly 
promote,  sue,  or  procure  to  be  sued,  any  false  or  unlawful  suit,  or 
give  aid  or  consent  to  the  same;  you  will  delay  no  man  for  lucre 
or  malice,  but  will  act  in  the  office  of  attorney  in  this  court  accord- 
ing to  your  best  learning  and  discretion,  with  all  good  fidelity  as 
well  to  the  court  as  to  your  client.  So  help  you  God.' "  96 


93  Rev.  Laws  1910,  §  240.  »»  Rev.  Laws  1910,  §  242. 

9  *  Rev.  Laws  1910,  §  241. 

(92) 


Art.  2)  OTHER   COURT   OFFICERS  §§    180-182 

§  180.    Foreign  attorneys. 

"Any  practicing  attorney  of  another  state  or  territory,  having 
professional  business  in  the  courts  of  this  state,  may  be  admitted  to 
practice  therein  upon  taking  the  oath  aforesaid."  9a 

§  181.     Duties 

"It  is  the  duty  of  an  attorney  and  counselor: 

"First.  To  maintain,  while  in  the  presence  of  the  courts  of 
justice,  or  in  the  presence  of  judicial  officers  engaged  in  the  dis- 
charge of  judicial  duties,  the  respect  due  to  the  said  courts  and 
judicial  officers,  and  at  all  times  to  obey  all  lawful  orders  and 
writs  of  the  court. 

"Second.  To  counsel  and  maintain  no  actions,  proceedings  or 
defenses  except  those  which  appear  to  him  legal  and  just,  except 
the  defense  of  a  person  charged  with  a  public  offense. 

"Third.  To  employ  for  the  purpose  of  maintaining  the  causes 
confided  to  him  such  means  only  as  are  consistent  with  truth,  and 
never  to  seek  to  mislead  the  judges  by  any  artifice  or  false  state- 
ments of  facts  or  law. 

"Fourth.  To  maintain  inviolate  the  confidence,  and,  at  any  peril 
to  himself,  to  preserve  the  secrets  of  his  client. 

"Fifth.  To  abstain  from  all  offensive  personalities,  and  to  ad- 
vance no  fact  prejudicial  to  the  honor  or  reputation  of  a  party  or 
witness  unless  required  by  the  justice  of  the  cause  with  which  he 
is  charged. 

"Sixth.  Not  to  encourage  either  the  commencement  or  contin- 
uance of  an  action  or  proceeding  from  any  motive  of  passion  or 
interest. 

"Seventh.  Never  to  reject  for  any  consideration  personal  to  him- 
self the  cause  of  the  defenseless  or  the  oppressed."  9I 

§  182.     Power,  duty,  and  liability 

The  court  should  treat  all  persons  having  business  therein  with 
absolute  fairness,  and  such  persons,  and  especially  attorneys,  should 
treat  the  court  in  the  same  manner,  and  unfairness  of  attorneys, 
and  any  attempt  to  impose  upon  the  confidence  of  the  court,  can- 
not be  too  strongly  condemned.  The  proper  administration  of  jus- 


»6  Rev.  Laws  1910,  §  243. 
87  Rev.  Laws  1910,  §  244. 


(93) 


§§    182-183  COURTS  AND  COURT   OFFICERS  (Ch.  1 

tice  requires  that  attorneys-  should  be  fair  and  honorable  with  op- 
posing counsel,  the  court,  and  their  clients.98 

Attorneys  are  not  liable,  if  their  acts  are  in  good  faith  and  perti- 
nent to  the  matter  in  question." 

An  attorney  undertaking  to  conduct  a  case  impliedly  agrees 
to  carry  it  to  its  termination,  and  cannot  abandon  it  without  cause 
or  reasonable  notice.1 

Ratification  of  the  act  of  an  attorney  is  equivalent  to  an  original 
grant  of  authority.2 

§  183.     Implied  authority — Tender — Compromise — Notice 

An  attorney,  employed  to  institute  and  prosecute  a  suit,  has  no 
implied  authority  to  receive  a  tender,3  or  to  make  a  compromise  or 
settlement.4 


98  Caples  v.  State,  104  P.  493,  3  Okl.  Cr.  72.  26  L.  R.  A.  (N.  S.)  1033. 
Attorneys  must  treat  each  other  and  the  trial  courts  with  fairness  and 

good  faith.  Simmons  v.  State,  114  P.  752,  4  Okl.  Cr.  490,  denying  rehearing 
112  P.  35,  4  Okl.  Cr.  489. 

While  it  is  an  attorney's  duty  to  do  everything  that  is  fair  and  legal  to 
protect  the  substantial  rights  of  his  client,  it  is  also  his  duty  to  the  court  to 
try  the  case  on  its  actual  merits,  and  not  to  present  questions,  not  jurisdic- 
tional,  which  are  purely  technical,  and  do  not  involve  the  actual  merits.  Os- 
tendorf  v.  State,  128  P.  143,  8  Okl.  Cr.  360. 

Defendant,  an  attorney  employed  to  protest  confirmation  of  a  guardian's 
sale  of  client's  land,  who,  after  his  protest,  failed,  and  on  information  to  and 
approval  by  client  raised  the  bid  and  purchased  land  and,  after  offering  it 
to  client  for  amount  of  bid,  sold  it  at  a  small  profit,  held,  on  the  evidence,  to 
have  acted  in  utmost  good  faith  and  fairness  to  client.  Watts  v.  Jackson,  75 
Okl.  123,  182  P.  508. 

99  Waugh  v.  Dibbens,  61  Okl.  221,  160  P.  589,  L.  R.  A.  1917B,  360. 
iMcLaughlin  v.   Nettleton,  47  Okl.  407,  148  P.  987.     He  is  authorized  by 

his  employment  to  do  in  behalf  of  his  client  all  acts  necessary  or  incidental 
to  prosecution  and  management  of  suit  which  affect  the  remedy  as  distin- 
guished from  the  cause  of  action.  He  has  the  right  to  waive  a  jury  and 
consent  to  try  his  client's  case  on  a  date  before  the  action  regularly  stands 
for  trial.  Neil  v.  Union  Nat.  Bank  of  Chandler  (Okl.)  178  P.  659. 

On  an  issue  as  to  the  sufficiency  of  a  notice  to  vacate  certain  railroad  de- 
pot grounds,  signed  in  the  name  of  the  railroad  company .  by  F.  and  A.,  "its 
attorneys,"  the  word  "attorneys"  should  be  construed  to  mean  attorneys  at 
law.  Nolan  v.  St.  Louis  &  S.  F.  R.  Co.,  91  P.  1128,  19  Okl.  51.  A  duly  au- 
thorized attorney,  after  employment,  may  give  any  notice  affecting  the  sub- 
stantial rights  of  his  client  that  the  client  might  himself  have  given,  and 
those  affected  by  the  notice  must  take  notice  thereof.  Id. 

2  St.  Louis  &  S.  F.  R.  Co.  v.  Leger  Mill  Co.,  53  Okl.  127,  155  P.  599. 

3  Massachusetts  Bonding  &  Ins.  Co.  v.  Vance  (Okl.)  180  P.  693. 

4  Massachusetts  Bonding  &  Ins.  Co.   v.  Vance    (Okl.)    180  P.   693;    First 

(94) 


Art.  2)  OTHER   COURT   OFFICERS  §§    183~186 

Where  an  attorney  compromises  a  pending  action  and  his  au- 
thority to  do  so  is  put  in  issue,  the  burden  is  on  the  party  assert- 
ing the  compromise  to  .show  authority  therefor  or  ratification 
thereof.5  But  in  an  action  to  enforce  a  compromise  and  settlement 
of  a  damage  case,  it  will  not  be  presumed  that  the  attorney  mak- 
ing the  settlement  for  defendant  was  without  lawful  authority,  and 
slight  evidence  will  be  deemed  sufficient  to  take  the  case  to  the 
jury  on  that  question.6 

Prior  to  judgment,  an  attorney  has  no  interest  in  the  cause  of 
action  enabling  him  to  prevent  any  bona  fide  settlement  by  the 
client.7 

§  184.    May  receive  money  for  client 

"An  attorney  and  counselor  has  power  to  receive  money  claim- 
ed by  his  client  in  an  action  or  proceeding  during  the  pendency 
thereof,  or  afterwards,  unless  he  has  been  previously  discharged 
by  his  client,  and,  upon  payment  thereof,  and  not  otherwise,  to  dis- 
charge the  claim  or  .acknowledge  satisfaction  of  the  judgment."  8 

§  185.     Proof  of  authority  to  appear 

"The  court  may,  on  motion  of  either  party,  and  on  the  showing 
of  reasonable  grounds  therefor,  require  the  attorney  for  the  adverse 
party,  or  for  any  one  of  the  several  adverse  parties,  to  produce  or 
prove  by  his  oath,  or  otherwise,  the  authority  under  which  he  ap- 
pears, and,  until  he  does  so,  may  stay  proceedings  by  him  on  behalf 
of  the  parties  for  whom  he  assumes  to  appear."  ' 

§  186.     Purchasing  property 

An  attorney  is  not  under  an  absolute  disability  to  purchase  his 
client's  property;  but  where  he  does  purchase,  he  assumes  burden 
of  proving  his  utmost  good  faith,  his  payment  of  an  adequate  con- 
sideration, and  that  he  fully  informed  client  of  all  material  facts  and 

State  Bank  of  Indiahoma  v.  Carr  (Okl.)  180  P.  856;   Turner  v.  Fleming,  13O 
P.  551,  37  Okl.  75,  45  L.  R.  A.  (N.  S.)  265,  Ann.  Gas.  1915B,  831. 

5  Scott  v.  Moore,  52  Okl.  200,  152  P.  823 ;    Hamberger  v.  White,  54  Okl. 
736,  154  P.  576. 

6  St.  Louis  &  S.  F.  R.  Co.  v.  Leger  Mill  Co.,  53  Okl.  127,  155  P.  599. 

7  Wells  Fargo  &  Co.  v.  Moore,  31  Okl.  135,  120  P.  612. 

8  Rev.  Laws  1910,  §  245. 

9  Rev.  Laws  1910,  §  246. 

(95) 


§§    186-187  COURTS  AND  COURT  OFFICERS  (Ch.  1 

gave  the  same  disinterested  advice  he  would  have  given  on  a  sale 
to  a  stranger.10 

Where  an  attorney  buys  land  from  a  vendee  at  foreclosure  sale, 
the  fact  that  he  had  been  an  attorney  for  the  mortgagor  does  not 
prevent  the  attorney  from  purchasing  the  land  in  his  own  right,  in 
the  absence  of  fraud,  and  where  he  had  no  duty  to  perform  incon- 
sistent with  the  purchase.11 

Where  the  sale  of  a  judgment  to  an  attorney  is  beneficial  to  his 
client,  and  for  an  adequate  price,  and  made  pursuant  to  the  desire 
of  the  client,  the  attorney  is  not,  by  reason  of  his  relation  to  the 
judgment  creditor,  precluded  from  relief  under  the  judgment.12 

§  187.     Lien  for  services — Extent — Notice 

"From  the  commencement  of  an  action,  or  from  the  filing  of  an 
answer  containing  a  counterclaim,  the  attorney  who  represents  the 
party  in  whose  behalf  such  pleading  is  filed  shall,  to  the  extent  here- 
inafter specified,  have  a  lien  upon  his  client's  cause  of  action  or 
counterclaim,  and  same  shall  attach  to  any -verdict,  report,  deci- 
sion, finding  or  judgment  in  his  client's  favor,  and  the  proceeds 
thereof,  wherever  found,  shall  be  subject  to  such  lien,  and  no  set- 
tlement between  the  parties  without  the  approval  of  the  attorney 
shall  affect  or  destroy  such  lien,  provided  such  attorney  serves  no- 
tice upon  the  defendant  or  defendants,  or  proposed  defendant  or 
defendants,  in  which  he  shall  set  forth  the  nature  of  the  lien  he 
claims  and  the  extent  thereof;  and  said  lien  shall  take  effect  from 
and  after  the  service  of  such  notice,  but  such  notice  shall  not  be 
necessary  provided  such  attorney  has  filed  such  pleading  in  a 
court  of  record,  and  indorsed  thereon  his  name,  together  with  the 
words  'Lien  claimed.'  "  18 

An  attorney  has  a  lien  only  upon  his  client's  affirmative  cause  of 
action  which  cannot  be  extended  to  services  merely  protecting  an 
existing  right  or  title  in  client's  property.1* 

Where  an  attorney's  contract  to  bring  action  for  land  in  the  ad- 
verse possession  of  another  gives  him  a  percentage  of  the  land  in 

10  Watts  v.  Jackson,  75  Okl.  123,  182  P.  508. 

11  Harrison  v.  Murphey,  39  Okl.  548,  49  L.  R.  A.  (N.  S.)  1059,  135  P.  1137, 

12  Holmes  v.  Culver,  133  P.  164,  89  Kan.  698. 
18  Rev.  Laws  1910,  §  247. 

i*  Elliott  v.  Orton  (Okl.)  171  P.  1110,  L.  R.  A.  1918E,  103. 

(96) 


Art.  2)  OTHER    COURT   OFFICERS  §    188 

event  of  recovery  or  compromise,  such  lien  is  prior  to  an  oil  and 
gas  lease  executed  by  the  client  pending  suit;  and,  where  on  com- 
promise part  of  fend  is  conveyed  to  the  attorney  to  satisfy  lien, 
it  is  not  subject  to  the  lease.15 

§  188.     Fees 

"It  shall  be  lawful  for  an  attorney  to  contract  for  a  percentage  or 
portion  of  the  proceeds  of 'a  client's  cause  of  action  or  claim  not  to 
exceed  fifty  per  centum  of  the  net  amount  of  such  judgment  as  may 
be  recovered,  or  such  compromise  as  may  be  made,  whether  the 
same  arises  ex  contractu  or  ex  delicto,  and  no  compromise  or  set- 
tlement entered  into  by  a  client  without  such  attorney's  consent 
shall  affect  or  abrogate  the  lien  provided  for  in  this  chapter."  18 

A  contract  for  attorney's  fees  and  note  and  mortgage  therefor, 
after  inception  of  litigation,  will  not  be  set  aside,  in  absence  of  al- 
legation or  proof  of  fraud,  mistake,  or  imposition.17 

A  valid  covenant  in  an  attorney's  contract,  for  contingent  fees, 
based  on  a  legal  consideration,  is  enforceable,  though  a  separable 
covenant  for  the  same  consideration  is  void  as  against  public  pol- 
icy.18 

In  an  action  to  recover  attorney's  fees  under  contract  making  the 
amount  contingent  on  success,  counsel's  skill,  diligence,  and  legal 
knowledge  should  be  measured  largely  by  the  result,  and  not  by 
number  or  length  of  pleadings,  number  of  appearances  in  court,  or 
time  consumed  in  oral  argument.19  A  client,  who  has  contracted 
to  pay  an  attorney  a  percentage  of  proceeds  of  cause  of  action,  can- 
not compromise  his  cause  of  action,  so  as  to  affect  the  attorney's 
fee  or  abrogate  his  lien.20 

Where  a  defense  in  an  action  was  based  on  the  alleged  want  of 
authority  of  plaintiff's  attorney  to  give  a  certain  notice,  the  burden 
was  on  defendant  to  prove  such  want  of  authority.21  Where  a 

18  Gust  v.  Van  Court  (Okl.)  178  P.  683. 

16  Rev.  Laws  1910,  c.  5,  §  248. 

17  Spaulding  v.  Beidleman,  61  Okl.  183,  160  P.  1120. 

18  Allen  v.  Shepherd   (Okl.)    169  P.  1115;    Culver  v.  Diamond   (Okl.)   167 
P.  223,  64  Okl.  271. 

19  Cornelius  v.  Smith   (Okl.)   175  P.  754,  9  A.  L.  R.  233. 

20  Allen  v.  Shepherd  (Okl.)  169  P.  1115;    Herman  Const.  Co.  v.  Wood,  128 
P.  309,  35  Okl.  103. 

21  Nolan  v.  St.  Louis  &  S-  F.  R.  Co.,  91  P.  1128,  19  Okl.  51. 

HON.PL.&  PRAC.— 7  (97) 


§    189  COURTS  AXD  COURT   OFFICERS  (Ch.  1 

client  contracts  to  pay  a  contingent  fee,  and  compromised  with  ad- 
verse party,  without  attorney's  consent,  the  attorney  might  sue 
adverse  party  for  the  amount  due  under  the  contract.  In  such  a 
case  he  must  show  client's  meritorious  cause  of  action,  and  what 
client  would  have  been  entitled  to  receive.22 

§  189.    Enforcement — Compromise  without  notice 

"Should  the  party  to  any  action  or  proposed  action,  whose  in- 
terest is  adverse  to  the  client  contracting  with  an  attorney  settle  or 
compromise  the  cause  of  action  or  claim  wherein  is  involved  any 
lien,  as  mentioned  in  the  preceding  section  thereof,  such  adverse 
party  shall  thereupon  become  liable  to  such  attorney  for  the  fee 
due  him  or  to  become  due  him  under  his  contract  of  employment. 
After  judgment  in  any  court  of  record,  the  attorney's  lien,  provided 
for  herein  may  also  be  effective  against  the  judgment  debtor,  by  en- 
tering same  in  the  judgment  docket  opposite  the  entry  of  the  judg- 
ment, and  such  attorney  may  enforce  any  lien  provided  for  by  this 
act  in  any  court  of  competent  jurisdiction  by  action  filed  within 
one  year  after  he  becomes  aware  of  such  compromise,  or  judgment 
may  be  rendered  on  his  motion  in  the  case  in  the  court  in  which 
the  suit  was  brought."  23 

Under  a  former  statute  it  was  held  that,  where  an  attorney  files  a 
lien  claim  and  the  case  is  compromised  by  his  client  without  his  con- 
sent, he  may  recover  his  fee  from  the  party  settling  with  his  client 
if  his  client  should  have  prevailed,  but  not  otherwise.24  In  an  ac- 

22  Allen  v.   Shepherd   (Okl.)    169  P.  1115. 

23  Sess.  Laws  1919;  e.  22.  §  1,  amending  Rev.  Laws  1910,  §  249. 

Where  parties  to  a  judgment  in  trial  court  settle  their  controversy  after 
appeal  to  Supreme  Court,  the  appeal  will  be  dismissed,  notwithstanding  the 
attorneys  for  defendants  have  a  contract  for  a  contingent  fee  and  the  settle- 
ment was  without  their  consent.  Ingrain  v.  Johnson  (Okl.)  176  P.  241. 

Where  attorney  was  employed  to  bring  suit,  and  it  was  compromised  with- 
out notice  to  him,  and  he  sues  the  adverse  party  for  compensation  for  serv- 
ices, he  need  not  show  merits  of  his  client's  cause,  but  merely  employment, 
a  suit,  compliance  with  statute,  a  compromise  by  adverse  litigant  without 
notice,  and  value  of  services.  Oklahoma  Coal  Co.  v.  Hays  (Okl.)  176  P.  931. 
In  attorney's  suit  to  recover  a  fee  against  an  adverse  litigant,  the  attorney's 
client,  whose  action  has  been  compromised  and  settled,  is  not  a  necessary 
party.  Id. 

Where  the  client  with  whom  an  attorney  has  contracted  pursuant  to  Laws 
1909,  c.  4,  compromises  the  case  without  the  attorney's  consent,  the  attorney 

*4  Crump  v.  Guyer,  60  Okl.  222,  157  P.  321,  9  A.  L.  R.  331. 

(08) 


Art.  2)  OTHER   COURT   OFFICERS  §§    189-190 

tion  to  recover  an  attorney  fee  from  an  adverse  litigant,  plaintiff 
must  show  that  the  litigation  was  compromised  without  notice  or 
opportunity  to  him  to  be  present  and  establish  his  client's  rights.25 

Where  an  attorney  under  the  terms  of  his  general  employment  de- 
bars himself  from  employment  by  others  whose  interests  are  an- 
tagonistic to  those  of  his  client,  such  service  is  a  proper  item  of 
charge  in  a  suit  for  services  rendered  under  the  general  employ- 
ment.20 

An  attorney  has  a  general  possessory  or  retaining  lien  on  proper- 
ty or  money  of  his  client  in  his  hands  for  his  fees,  etc.,  which  lien 
is  not  lost  while  the  money  is  still  under  control  of  attorney's 
agent.27 

That  an  Indian  Territory  attorney  eligible  to  admission  to  prac- 
tice in  the  Oklahoma  Supreme  Court  had  not  been  enrolled  when  he 
contracted  with  a  client,  did  not  preclude  him  from  recovering  from 
his  associate  counsel  his  share  of  a  fee  collected  by  such  counsel.28 

§  190.     Amount  which  may  be  recovered 

"Should  the  amount  of  the  attorney's  fees  be  agreed  upon  in  the 
contract  of  employment,  then  such  attorney's  lien  and  cause  of 

may  recover  as  his  fee  from  the  adverse  litigant  the  amount  he  would  have 
received  on  final  judgment  for  his  client.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Wil- 
liams, 49  Okl.  126,  152  P.  395.  In  an  attorney's  action  to  recover  a  percentage 
fee  from  the  adverse  litigant  with  whom  his  client  has  compromised,  the 
attorney  may  establish  the  merits  of  the  client's  cause  of  action.  Id.  Where 
the  plaintiff  attorney  had  contracted  with  his  client  for  50  per  cent,  of  the 
amount  recovered,  the  measure  of  his  recovery  from  the  adverse  litigant  was 
50  per  cent,  of  what  would  have  been  recovered  by  suit,  with  interest,  and 
not  merely  that  which  would  constitute  "a  reasonable  attorney's  fee."  Id. 

25  Whitehead  v.  Spriggs,  58  Okl.  42,  158  P.  439. 

Where  a  contract  for  contingent  fee  has  been  made  and  a  compromise  had 
between  the  client  and  the  adverse  litigant,  without  consent  of  the  attorney, 
the  latter  may  sue  the  adverse  litigant  for  the  amount  due  him  under  his  con- 
tract, and  show  the  amount  his  client  would  have  been  entitled  to  if  the  suit 
had  been  prosecuted  to  judgment.  Herman  Const.  Co.  v.  Wood,  128  P.  309, 
35  Okl.  103. 

26  Mellon  v.  Fulton,  98  P.  911,  22  Okl.  636,  19  L.  R.  A.  (N.  S-)  960. 

In  an  action  by  an  attorney  to  recover  against  defendant  for  collusive  set- 
tlement with  a  client  of  plaintiff  to  defraud  him  of  his  fees,  evidence  held 
insufficient  to  establish  the  charge  of  fraud  with  the  certainty  required. 
Wells  Fargo  &  Co.  v.  Moore,  31  Okl.  135,  120  P.  612. 

27  American  Nat.  Bank'  of  Stigler  v.  Funk    (Okl.)    172  P.  1078,  L.  R.  A. 
1918F,  1137. 

28Martindale  v.  Shaha,  51  Okl.  670,  151  P.  1019. 

(99) 


§§    190-191  COURTS  AND  COURT  OFFICERS  (Ch.  1 

action  against  such  adverse  party  shall  be  for  the  amount  or  por- 
tion of  the  property  so  agreed  upon.  If  the  fee  be  not  fixed  by 
contract  the  lien  and  cause  of  action,  as  aforesaid,  shall  be  for  a  rea- 
sonable amount  for  not  only  the  services  actually  rendered  by 
such  attorney,  but  for  a  sum,  which  it  might  be  reasonably  sup- 
posed, would  have  been  earned  by  him,  had  he  been  permitted  to 
complete  his  contract,  and  been  successful  in  the  action,  and  such 
attorney  in  order  to  recover  need  not  establish  that  his  client,  if 
the  case  had  gone  to  trial,  would  have  been  successful  in  the  action, 
but  the  fact  of  settlement  shall  be  sufficient  without  other  proof 
to  establish  that  the  party  making  the  settlement  was  liable  in 
the  action.  Should  the  contract  be  for  a  contingent  fee  and  specify 
the  amount  for  which  action  is  to  be  filed,  then  the  lien  and  cause 
of  action,  as  aforesaid  shall  be  for  the  amount  contracted  for  if 
fixed  at  a  definite  sum  of  money  or  for  the  percentage  of  the 
amount  or  property  sued  for  as  mentioned  in  said  contract  where 
the  fee  is  fixed  on  a  percentage  basis,  not  exceeding  thirty-three 
and  one-third  per  cent,  of  the  amount  sued  on  where  the  settlement 
is  before  a  verdict  or  judgment  and  if  made  after  verdict  or  judg- 
ment then  the  full  contract  price."  29 

A  sum  certain  provided  for  in  a  mortgage  as  an  attorney's  fee 
will  be  deemed  reasonable,  unless  extravagantly  large  or  extor- 
tionate.30 

Where  an  attorney's  services  are  performed  under  entire  con- 
tract which  has  not  been  completely  performed,  he  may  sue  upon  a 
quantum  meruit  and  recover  the  reasonable  value  of  the  services 
rendered,  subject  to  set-off  for  breach  of  contract.31 

§  191.     May  not  become  surety  in  action  in  which  employed 

"Licensed  attorneys  of  this  state  are  prohibited  from  signing 
any  bonds  as  surety  in  any  civil  or  criminal  action  in  which  they 
may  be  employed  as  counselors,  pending  or  about  to  be  com- 
menced in  any  of  the  courts  of  this  state,  or  before  any  justice  of 


29  Sess.  Laws  1919,  c.  22,  §  2. 

80  A  provision  for  a  fee  of  $300  on  foreclosure  of  a  mortgage  for  $3,000 
held  not  excessive  as  a  matter  of  law.  Gourley  v.  Williams,  46  Okl.  629,  149 
P.  229. 

si  Hamilton  v.  Blakeney  (Okl.)  165  P.  141. 

(100) 


Art.  2)  OTHER   COURT   OFFICERS  §§    192-193 

the  peace.    All  such  bonds  shall  be  absolutely  void,  and  no  penalty 
can  be  recovered  of  the  attorney  signing  the  same."  32 

§  192.     Lien — Release  by  giving  bond 

"Any  person  interested  may  release  said  lien  by  executing  a  bond 
in  the  sum  double  the  amount  claimed,  or  in  such  sum  as  may  be 
fixed  by  a  judge  of  the  court  in  which  the  action  or  judgment  is  or 
has  been  pending,  payable  to  the  attorney,  with  security  to  be  ap- 
proved by  the  clerk  of  the  court,  conditioned  to  pay  the  amount 
finally  due  the  attorney  for  his  services,  which  amount  may  be 
ascertained  by  suit  on  the  bond."  33 

§  193.     Suspension  of  license — Disbarment 

"The  Supreme  Court  may  revoke  or  suspend  the  license  of  an 
attorney  or  counselor  at  law,  but  not  until  a  copy  of  the  charges 
against  him  shall  have  been  delivered  to  him  by  the  clerk  of  the 
court  in  which  the  proceedings  shall  have  been  commenced  and 
an  opportunity  shall  have  been  given  him  to  be  heard  in  his  de- 
fense." 3* 

A  lawyer  must  conduct  himself  with  fidelity  and  stern  integrity, 
and  there  is  no  place  at  the  bar  for  the  unscrupulous.  Disbarment, 
meaning  professional  excommunication  and  death,  should  be  re- 
sorted to  only  when  it  is  apparent  that  the  interest  of  the  commu- 
nity, the  integrity  of  courts,  or  the  honor  of  the  profession  imper- 
atively demand  it.35 

A  disbarment  proceeding  is  a  civil  proceeding.36  It  is  an  "ac- 
tion," as  that  word  is  employed  in  its  broadest  sense  of  including  all 
of  the  various  proceedings  ordinarily  allowed  in  courts  of  jus- 
tice.37 

Disbarment  is  not  a  criminal  or  punitive  proceeding,  but  the 
direct  question  therein  is  whether  the  respondent's  character  and 


32  Rev.  Laws  1910,  §  256. 

An  appeal  bond  signed  by  a  licensed  attorney  employed  in  the  trial  is  void. 
Schaffer  v.  Troutwein,  129  P.  696,  36  Okl.  653. 

33  Rev.  Laws  1910,  §  250. 
s*  Rev.  Laws  1910,  §  251. 

35  In  re  Sitton  (Okl.)  177  P.  555. 

38  In  re  Biggers,  104  P.  1083,  24  Okl.  842,  25  L.  R.  A.  (N.  S-)  622;    Disbar- 
ment of  Connell,  79-Okl.  212,  192  P.  564. 
37  In  re  Wilcox,  135  P.  995,  90  Kan.  646. 

(101) 


§    194  COURTS  AXD   COURT   OFFICERS  (Cll.  1 

conduct  are  such  that  the  Supreme  Court  should  protect  the  public 
and  courts  of  justice  against  him.33 

§  194.     Causes 

"The  following  are  sufficient  causes  for  suspension  or  revoca- 
tion: 

"First.  When  he  has  been  convicted  of  a  felony  under  the  stat- 
utes of  Oklahoma,  or  a  misdemeanor  involving  moral  turpitude,  in 
either  of  which  cases  the  record  of  conviction  is  conclusive  evi- 
dence. 

"Second.  When  he  is  guilty  of  a  willful  disobedience  or  viola- 
tion of  any  order  of  the  court  requiring  him  to  do  or  forbear  any 
act  connected  with  or  in  the  line  of  his  profession. 

"Third.  For  the  willful  violation  of  any  of  the  duties  of  an  attor- 
ney or  counselor."  39 

*8In  re  Sitton   (Okl.)  177  P.  555. 

as  Rev.  Laws  1910,  §  252. 

An  attorney's  willful  violation  of  any  of  his  duties  is  sufficient  ground  for 
disbarment.  In  re  Warren,  49  Okl.  87,  151  P.  619. 

A  county1  attorney  accepting  a  bribe  not  to  prosecute  may  be  disbarred. 
In  re  Simpson,  79  Okl.  305,  192  P.  1097.  Court  may  disbar  for  official  mis- 
conduct. In  re  Simpson,  79  Okl.  305,  192  P.  1097. 

Attorney's  conviction  of  felony  is  ground  for  revocation  of  his  license  to 
practice  law  in  the  state.  In  re  Horine,  64  Okl.  315,  167  P.  1148.  Attorney's 
conviction  of  misdemeanor  involving  moral  turpitude  under  statutes  of  Okla- 
homa is  ground  for  revocation  of  his  license  to  practice  law  in  state.  In  re 
Williams,  64  Okl.  316,  167  P.  1149.  "Moral  turpitude"  is  anything  contrary 
to  justice,  honesty,  modesty,  or  good  morals.  Id. 

The  printing  and  publication  of  a  pamphlet  falsely  and  maliciously  attack- 
ing the  integrity  of  the  courts  and  the  judges  thereof,  designed  to  willfully, 
purposely,  and  maliciously  misrepresent  and  bring  them  into  disrepute,  held 
ground  for  disbarment  of  an  attorney.  State  Bar  Commission  v.  Sullivan, 
131  P.  703,  35  Okl.  745,  L.  R.  A.  1915D,  1218. 

In  disbarment  proceedings,  respondent,  who  while  a  county  attorney  col- 
lected moneys  on  forfeited  bonds,  etc.,  and  instead  of  turning  it  over,  after 
deducting  his  commission,  withheld  it  on  a  claim  of  county's  indebtedness  to 
him,  exposed  himself  to  charge  of  professional  misconduct  subject  to  repri- 
mand. In  re  Sittou  (Okl.)  177  P.  555. 

An  attorney  who  collected  the  money  belonging  to  a  client  and  failed  to  ac- 
count for  it,  giving  no  excuse,  is  guilty  of  a  breach  of  duty  warranting  his 
disbarment.  In  re  Warren,  49  Okl.  87,  151  P.  619. 

Upon  referee's  finding,  supported  by  evidence,  that  attorney  at  law  was  con- 
victed of  embezzlement,  he  will  be  disbarred.  In  re  Horine,  64  Okl.  315,  167 
P.  1148. 

Where  evidence  in  record  fully  supported  referee's  findings  of  fact  and 
conclusions  of  law  that  respondent  had  willfully  violated  his  duties'  as  an 

(102) 


Art.  2)  OTHER  COURT  OFFICERS  §  194 

The  Supreme  Court  is  not  limited  in  its  disciplinary  power  over 
attorneys  to  the  grounds  and  remedies  indicated  by  statute,  but  the 
statutory  provisions  are  merely  cumulative.40 

While  an  attorney  cannot  be  disbarred  for  filing  a  pleading,  a  pe- 
tition with  pamphlet  attached  which  falsely  and  maliciously  at- 
tacks the  courts  and  judges  may  be  considered  as  evidence  of  the 
attorney's  unfitness  to  practice  law.41 

\ 

attorney  and  counselor  at  law,  and  was  guilty  of  unethical  and  unprofession- 
al conduct,  for  which  his  license  to  practice  law  should  be  revoked,  the  re- 
port would  be  approved,  and  the  license  revoked.  State  v.  Curd,  75  Okl.  15, 
181  P.  484. 

Evidence  in  support  of  count  of  information  or  petition  showing  that  re- 
spondent was  attorney  for  a  third  party,  and  appeared  in  court  as  attorney 
for  an  Indian,  and  procured  orders  for  benefit  of  third  party,  who  had  pur- 
chased from  the  Indian  soon  after  he  became  of  age  all  his  claims  against 
his  former  guardian  at  a  price  seeming  to  be  inadequate,  held  not  sufficient 
to  disbar.  In  re  Huddleston,  75  Okl.  48,  181  P.  711. 

A  member  of  a  firm  of  attorneys  who  received  a  claim  for  collection,  and 
who,  in  the  absence  of  his  partner,  collected  it  and  deposited  it  to  his  'own 
credit  and  checked  it  out  for  his  personal  use,  would  be  suspended  for  six 
months.  State  v.  Breslin  (Okl.)  169  P.  897.  A  member  of  a  firm  of  attor- 
neys receiving  a  claim  for  collection  who  was  absent  when  his  partner  col- 
lected it  and  misappropriated  the  proceeds,  and  who  upon  knowledge  thereof 
forwarded  the  amount  in  settlement  of  the  claim,  was  not  subject  to  disbar- 
ment or  suspension.  Id. 

Schedule  to  the  Constitution,  §  33  (Buim's  Ed.  §  482),  providing  that  all 
attorneys  licensed  to  practice  in  any  court  of  Oklahoma  Territory,  or  in  the 
United  States  courts  for  Indian  Territory,  or  in  any  court  of  the  Five  Civi- 
lized Tribes,  shall  be  eligible  to  practice  in  any  court  of  the  state  without 
examination,  does  not  preclude  an  inquiry  by  the  Supreme  Court  into  any 
act  or  conduct  of  an  attorney  preceding  the  adoption  of  the  Constitution 
and  his  disbarment  therefor.  In  re  Mosher-  102  P.  705,  24  Okl.  61,  24  L.  R.  A. 
(N.  S.)  530,  20  Ann.  Cas.  209. 

A  complaint  alleging  that  an  attorney  who  had  been  disbarred  in  Indiana 
practiced  a  fraud  upon  the  court  by  securing  his  admission  to  practice  here 
on  a  certificate  issued  by  an  Indiana  court,  prior  to  judgment  disbarring  him, 
states  facts  sufficient  to  disbar  an  attorney.  Dean  v.  Stone,  35  P.  578,  2 
Okl.  13. 

One  who  sought  admission  to  practice,  and  had  himself  enrolled  without 
disclosing  previous  disbarment  in  another  jurisdiction,  was  guilty  of  such  a 
fraud  on  the  court  as  required  disbarment.  In  re  Mosher,  102  P.  705,  24  Okl. 
61,  24  L.  R.  A.  (N.  S.)  530,  20  Ann.  Cas.  209. 

40  State  Bar   Commission  v.    Sullivan,   131  P.   703,  35  Okl.   745,   L.   R.  A. 
1915D,  1218;    State  Bar  Commission  v.  Sullivan,  131  P.  703,  35  Okl.  745,  L. 
R.  A.  1915D,  1218. 

41  State  Bar  Commission  v.  Sullivan,  131  P.  703,  35  Okl.  745,  L.  R.  A.  1915D, 
]218. 


§§    195-196  COURTS  AND  COURT   OFFICERS  (Ch.  1 

§  195.    Defenses — Limitations 

;  An  attorney  is  exonerated  from  charges  of  unprofessional  con- 
duct, in  applying  for  a  continuance  because  of  absence  of  material 
witnesses,  who  were  actually  present,  where,  though  they  were 
present,  he  did  not  know  it  and  presented  the  application  in  good 
faith  believing  they  were  in  fact  absent.42 

In  action  by  an  administratrix  of  attorney  to  recover  on  his  con- 
tract for  services  in  advising  client  in  securing  location  of  a  depot 
by  order  of  the  state  corporation  commission,  the  fact  that  plaintiff, 
to  have  the  depot  so  located,  had  to  pay  part  of  purchase  price  of 
the  lot  was  no  defense.43 

In  a  proceeding  for  disbarment  upon  charges  of  the  publication 
of  a  pamphlet  disrespectful  to  the  court,  the  statute  of  limitations 
is  not  available  as  a  defense,  especially  where  the  pamphlet  remains 
in  circulation  until  a  time  within  what  would  be  the  limitation  pe- 
riod if  the  statute  of  limitations  be  construed  to  apply.44 

§  196.  >    Proceedings — How  commenced 

:"The  proceedings  to  suspend  or  remove  an  attorney  may  be 
commenced  by  the  direction  of  the  court  or  on  motion  of  any  indi- 
vidual. In  the  former  case,  the  court  must  direct  some  attorney  to 
draw  up  the  accusation ;  in  the  latter  case,  the  accusation  must  be 
drawn  up  and  sworn  to  by  the  person  making  it."  45 

The  sufficiency  of  the  verification  of  the  charges  in  disbarment 
proceedings  must  be  determined  by  an  inspection  of  the  verifi- 
cation, and  the  evidence  of  affiant  cannot  be  received  to  show  that 
he  had  no  personal  knowledge  as  to  the  charges.  No  verification 
of  the  charges  is  necessary  in  disbarment  proceedings  brought  by 
the  state  bar  commission  by  order  of  the  Supreme  Court.46 

A  defendant  in  a  disbarment  proceeding  is  not  entitled  to  the  20 
days'  time  allowed  to  answer  an  ordinary  summons,  but  may  be 
cited  to  appear  within  aay  time  that  gives  him  a  reasonable  oppor- 
tunity to  be  heard.47 

42  In  re  Champion,  103  P.  600,  24  Okl.  154. 

43  Campbell  v.  House  (Okl.)  176  P.  913. 

44  State  Bar  Commission  v.  Sullivan,  131  P.  703,  35  Okl.  745,  L.  R.  A.  1915D, 
1218. 

45  Rev.  Laws  1910,  §  253. 

46  State  Bar   Commission  v.   Sullivan,  131  P.  703,  35  Okl.  745,  L.  R.  A. 
1915D,  1218. 

47  In  re  Brown,  39  P.  469,  2  Okl.  590. 

(104) 


Art.   2)  OTHER   COURT   OFFICERS  §§    197-198 

§  197.     Trial — Judgment 

"To  the  accusation  he  may  plead  or  demur,  and  the  issues  joined, 
thereon  shall  in  all  cases  be  tried  by  the  court,  all  the  evidence 
being  reduced  to  writing,  filed  and  preserved."  48 

"If  the  accused  plead  guilty  or  fail  to  answer,  the  court  shall  pro- 
ceed to  render  such  judgment  as  the  case  requires."  *9 

In  a  disbarment  proceeding  the  attorney  is  presumed  to  be  inno- 
cent of  the  charges  preferred,  and  to  have  performed  his  duty  as  an 
officer  of  the  court  iinaccordance  with  his  oath.50  The  evidence  in 
support  of  the  charges  must  satisfy  the  court  to  a  reasonable  cer-. 
tainty  that  the  charges  are  true.51 

A  referee  in  a  disbarment  proceeding  is  an  officer  of  the  court, 
and  the  court  has  full  authority  to  supervise  and  control  his  report 
by  setting  it  aside,  or  confirming  or  modifying  it  as  the  facts  and 
the  law  require.52  ' 

§  198.     Attorney  and  client  in  general 

In  construing  a  contract  between  a  lawyer  and  one  depending 
on  him  for  advice,  every  presumption  is  rendered  against  the  law- 
yer,63 and  he  has  the  burden  of  showing  fairness.5*  If  he  receives 


^s  Rev.  Laws  1910,  §  254. 
*9  Rev.  Laws  1910,  §  255. 
so  in  re  McNabb,  76  Okl.  253,  185  P.  431. 

51  Transcript  of  evidence  in  a  disbarment  proceeding  based  on  charge  that 
defendant  employed)  to  represent  a  guardian  in  a  proceeding  to  sell  lands 
of  his  minor  children  and  wards  received  and  kept  purchase  price  without 
an  order  of  court  and  made  a  conveyance  to  minors  of  certain  land  owned 
by  him  in  lieu  of  money  received,  made  false  statements  in  preparing  guard- 
ian's report,  kept  other  moneys  belonging  to  petitioner,  and  had  been  convict- 
ed of  a  misdemeanor  involving  moral  turpitude,  etc-,  examined,  and  held  to 
support  findings  of  referee  which  with  his  conclusions  of  law  would  be  cpn- 
firmed  and  the  proceeding  dismissed.    In  re  McNabb,  76  Okl.  253,  185  P.  431. 
Guilt  must  be  shown  by  more  than  a  preponderance  of  the  evidence.    In  fe 
Simpson,  79  Okl.  305,  192  P.  1097. 

52  The  report  of  a  referee  appointed  to  take  evidence  and  report  his  find- 
ings of  fact  and  conclusions  of  law  in  a  disbarment  proceeding  is  not  con- 
clusive as  to  either  the  findings  or  conclusions,  but  is  accorded  every  reason- 
able presumption  of  correctness,  and  the  burden  is  on  party  attacking  it; 
but  it  is  to  be  freely  set  aside  by  the  court  if  found  to  be  incorrect.    In  re 
McNabb,  76  Okl.  253,  185  P.  431. 

53  Barker  v.  Wiseman,  51  Okl.  645,  151  P.  1047. 

54  Board  of  Com'rs  of  Okfuskee  County  v.  Hazlewood,  79  Okl.  185,  192  P. 
217,  11  A.  L.  B.  709. 

(105) 


§    198  COURTS  AND   COURT   OFFICERS  (Ch.  1 

benefits  under  the  contract,  he  is  presumed  to  exert  undue  influ- 
ence.55 

An  attorney's  knowledge  that  the  case  in  which  he  is  employed 
has  been  set  for  trial,  and  that  a  judgment  has  been  rendered  there- 
in, is  imputed  to  the  client,  in  the  absence  of  fraud.56 

Where  the  purchaser  of  land  from  purchasers  at  a  guardian's 
sale  intrusted  approval  of  title  to  an  attorney  for  loan  companies, 
who  performed  such  services  without  additional  charge,  the  rela- 
tion of  attorney  and  client  existed  between  such  attorney  and  the 
purchaser,  and  he  was  bound  by  such  notice  as  was  acquired  by  the 
attorney  in  passing  upon  the  title.57 

An  attorney  is  bound  to  act  with  entire  good  faith  toward  his 
client,  and  the  latter  is  entitled  to  act  on  the  attorney's  informa- 
tion and  advice  as  against  information  received  from  others. 
Where  an  attorney  induced  his  client  to  assign  her  claim  against 
the  estate  of  her  guardian  to  a  business  associate  of  the  attorney 
for  less  than  its  value  by  false  representations,  that  the  client  may 
have  had  information  from  other  sources  that  her  claim  would  be 
paid  in  full  did  not  relieve  the  attorney  from  the  consequences  of 
his  fraud,  nor  is  the  fact  that  in  the  client's  original  statement  of 
the  claim  she  asked  that  it  be  preferred  notice  to  her  that  it  would 
be  paid  in  full,  so  as  to  relieve  the  attorney  from  the  consequences 
of  a  letter  fraudulently  written  thereafter  to  induce  her  to  assign 
the  claim  for  less  than  its  value.58 

The  rights  and  remedies  of  attorneys  existing  before  the  Re- 
vised Laws  of  1910  became  effective  were  not  affected  by  its  adop- 
tion.59 

55  Hunter  v.  Battiest,  79  Okl.  248,  192  P.  575. 

5«  Bigsby  v.  Eppstein,  39  Okl.  466,  135  P.  934. 

Where  attorney  acting  for  indorsee  of  note  had  actual  knowledge  of  in- 
firmity, such  knowledge  will  be  imputed  to  indorsee.  Lambert  v.  Smith,  53 
Okl.  606,  157  P.  909. 

"Pyeatt  v.  Estus  (Okl.)  179  P.  42,  4  A.  L.  R.  1570. 

58  Mohr  v.  Sands,  44  Okl.  330,  133  P.  238. 

59  Culver  v.  Diamond,  64  Okl.  271,  167  P.  223;    Allen  v.  Shepherd   (Okl.) 
169  P.  1115. 

(106) 


Ch.  2)  ARBITRATION,  COMPROMISE,  AND  SETTLEMENT  §    1991 


CHAPTER  II 

ARBITRATION,  COMPROMISE,  AND  SETTLEMENT 

Sections 

199-200.     Article    I.— Arbitration. 

201-202.    Article  II. — Compromise  and  settlement. 

ARTICLE  I 
ARBITRATION 

Sections 

199.  In  general. 

200.  Forms. 
§  199.     In  general 

'/Arbitration"  is  the  submission  of  some  disputed  matter  to  se- 
lected persons  and  the  substitution  of  their  decision  for  a  judgment 
of  court.  It  is  recognized  at  common  law,  which,  in  the  absence 
of  statute,  controls.1  The  settlement  of  disputes  by  arbitration  te 
favored  by  the  courts.  Submission  to  arbitration  may  be  by  parol, 
where  an  oral  agreement  with  respect  to  the  matter  submitted 
would  be  enforceable.2 

An  award,  though  made  upon  a  mere  common-law  arbitration, 
is  prima  facie  conclusive  between  the  parties  as  to  all  matters  sub- 
mitted to  the  arbitrators ;  and  such  award  is  generally  a  bar  to 
an  action  on  the  original  claim,  and  this  notwithstanding  defend- 
ant has  failed  to  comply  with  its  requirements.  Arbitrations  ought 
to  be  encouraged,  and  an  award  of  arbitrators,  if  unimpeached  for 
fraud  or  mistake,  should  be  sustained.3 

Anxaward  has  the  same  force  as  a  judgment  of  a  court  of  com- 
petent jurisdiction,  and  a  controversy  thus  adjusted  cannot  be  re- 
tried, unless  the  pleadings  state  facts  sufficient  to  avoid  the  award.* 

1  Deal  v.  Thompson,  51  Okl.  256,  151  P.  856. 

2  Deal  v.  Thompson,  51  Okl.  256,  151  P.  856.     Unless  an  agreement  to  sub- 
mit to  arbitration  otherwise  provides,  the  award  may  be  by  parol.    Id. 

s  Groat  v.  Pracht,  3  P.  274,  31  Kan.  656.  Controversies  respecting  any  estate 
in  lands  may  be  made  the  subject  of  arbitration.  Finley  v.  Funk,  12  P.  15, 
35  Kan.  668. 

4  Scrivner  v.  McClelland  (Okl.)  168  P.  415. 

Where  the  plaintiff's  claim  is  for  money  due  for  materials  and  labor,  and 
the  matters  were  submitted  to  arbitrators,  who  made  an  award  that  defend- 

(107) 


§    199  ARBITRATION,  COMPROMISE,  AND   SETTLEMENT  (Ch.  2 

Where  the  parties  agree  that  no  oaths  shall  be  administered  to 
arbitrators,  and  that  the  testimony  of  witnesses  unsworn  shall  be 
received,  neither  of  them  can  make  the  omission  to  administer 
oaths  a  ground  of  objection  to  the  award.5 

Irregularities  of  arbitrators,  to  whom  is  submitted  a  contro- 
versy, and  who  act  in  good  faith,  which  are  not  prejudicial  to  the 
complaining  party,  will  not  avoid  an  award.6 

An  award  of  arbitrators  will  not  be  set  aside  because  the  arbi- 
trators have  drawn  incorrect  conclusions  from  the  facts  before 
them.7  But  an  award  is  not  binding  when  it  is  the  result  of  a 
misapprehension  on  their  part  of  the  language  used  in  denning 
the  matter  submitted  to  their  decision.8 

Where  an  agreement  is  made  to  submit  a  controversy  to  two  ar- 
bitrators, they  to  select  a  third,  to  act  if  they  cannot  agree,  an 
award  made  by  "the  third  arbitrator  and  one  of  the  others  is  bind- 
ing.9 

A  party  to  an  arbitration  who,  before  an  award,  knew  of  the  in- 
eompetency  of  one  of  the  arbitrators,  cannot  set  the  award  aside 
on  that  ground.10 

An  arbitrator  is  the  agent  of  both  parties  concerned,  and,  where 
he  proceeds  as  if  he  was  the  special  agent  of  one,  his  decision  is 
not  binding,  however  honest  his  motives.11 


ant  give  a  check  for  a  certain  amount,  surrender  a  certain  note,  and  receipt 
two  accounts,  one  against  the  plaintiff  and  one  against  his  father-in-law,  such 
award  is  a  bar  to  an  action  on  the  original  claim.  Groat  v.  Pracht,  3  P.  274, 
31  Kan.  656. 

While  the  statutes  of  Oklahoma  do  not  provide  for  arbitration,  an  arbitra- 
tion may1  be  had  under  the  common  law.  Burke  Grain  Co.  v.  Stinchcomb 
(Okl.)  173  P.  204. 

o  Russell  v.  Seery,  35  P.  812,  52  Kan.  736. 

s  Anderson  v.  Burchett,  29  P.  315,  48  Kan.  153. 

7  Russell  v.  Seery,  35  P.  812,  52  Kan.  736. 

s  Swisher  v.  Dunn,  131  P.  571,  89  Kan.  412,  45  L.  R.  A.  (N.  S.)  810,  rehear- 
ing denied  132  P.  832,  89  Kan.  787,  45  L.  R.  A.  (N.  S.)  813. 

»  Fish  v.  Vermillion,  78  P.  811,  70  Kan.  348. 

10  Anderson  v.  Burchett,  29  P.  315,  48  Kan.  153. 

11  Lantry  Contracting  Co.  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  172  P.  527,  102 
Kan.  799. 

(108) 


Art.  1)  ARBITRATION  §   200 

§  200.     Forms 

AGREEMENT  TO  SUBMIT  TO   ARBITRATION 

(Caption) 

Whereas,  there  are  certain  matters  in  dispute  between  A.  B.,  C. 
D.,  and  E.  F. ;  and  whereas  it  is  the  desire  to  settle  said  differ- 
ences : 

Now,  therefore,  witnesseth : 

That  we,  A.  B.,  C.  D.,  and  E.  F.  have  agreed,  and  by  these  pres- 
ents do  hereby  agree,  to  arbitrate  all  matters  of  dispute  between 
us,  and  for  that  purpose  have  selected  W.  X.  and  Y.  Z.  as  arbitra- 
tors, and  we  hereby  agree  to  abide  by  the  decision  of  said  arbi- 
trators ; 

And  it  is  further  agreed,  that  if  said  arbitrators  cannot  agree, 
they  are  to  select  a  third  person,  whose  decision  shall  be  final  in 
the  premises,  subject  to  all  lawful  and  legal  objections; 

And  it  is  further  agreed,  that  the  award  of  such  arbitrators  be 

made  a  rule  of  the  district  court  of county,  Oklahoma ;   said 

arbitration  to  be  according  to  the  laws  of  the  state  of  Oklahoma, 

and  to  be  held  at  ,  in  county,  Oklahoma,  on  the 

day  of ,  19 — ,  or  at  such  time  and  place  as  said  ar- 
bitrators shall  agree  upon. 

Witness  our  hands,  this  day  of  ,  19 — .12 

(Signatures.) 

OATH  OF  ARBITRATORS 

(Caption) 

We,  W.  X.  and  Y.  Z.,  do  solemnly  swear  that  we  will,  to  the 
best  of  our  ability,  hear  and  determine  all  matters  of  dispute  be- 
tween A.  B.,  C.  D.,  and  E.  F.,  and  a  true  award  make  according 
to  our  best  knowledge  and  ability. 

(Signatures.) 

Subscribed  and  sworn  to  before  me  this  day  of  , 

19—. 

My  commission  expires  . 

(Signature,) 


12  Weir  v.  West,  27  Kan.  650. 
is  Weir  v.  West,  27  Kan.  650. 


Notary  Public.13 
(109) 


§§    200-201      ARBITRATION,  COMPROMISE,  AND   SETTLEMENT  (Ch.  2 

AWARD    OF   ARBITRATORS 

(Caption) 

We,  the  undersigned,  the  duly  appointed  arbitrators  of  the  mat- 
ter in  controversy  between  A.  B.,  C.  D.,  and  E.  F.,  as  appears 
more  fully  in  the  agreement  hereto  attached,  having  taken  the 
oath  also  hereto  attached,  do  hereby  certify  that  we  notified  each 
of  said  parties  in  writing  of  bur  first  meeting,  and  that  in  pursu- 
ance to  such  notice  we  met  at ,  in county,  Oklahoma, 

on  the  day  of  —  — ,  19 —  (include  and  set  out  adjourn- 
ments, if  any),  and  proceeded  to  hear  the  allegations,  evidence, 
proofs,  and  arguments  of  the  said  parties,  and,  after  due  delibera- 
tion, do  hereby  find,  adjudge,  award,  determine,  and  order  as 
follows:  (Set  forth  conclusion  of  arbitrators.) 

Witness  our  hands  this  day  of ,  19 — . 

(Signatures.) 

ARTICLE  II 

COMPROMISE   AND   SETTLEMENT 

Sections 

201.  In  general. 

202.  Construction. 
§  201.     In  general 

A  "compromise"  is  an  agreement  between  two  or  more  persons, 
who,  to  avoid  a  lawsuit,  amicably  settle  their  difficulties  on  such 
terms  as  they  may  agree  upon.14 

"Settlement"  of  a  debt  is  the  same  as  "payment."  15 

The  law  encourages  the  compromise  and  settlement  of  contro- 
versies in  order  to  discourage  litigation.16 

A  settlement  agreement,  impossible  of  performance,  is  not  bind- 
ing.17 

Where  the  amount  of  the  claim  is  in  good  faith  disputed  a  com- 

n  City  of  Anadarko  v.  Argo,  128  P.  500,  35  Okl.  115. 

is  Roniger  v.  Mclntosh,  137  P.  792,  91  Kan.  368. 

10  Pacific  Mut.  Life  Ins.  Co.  of  California  v.  Coley,  62  Okl.  161,  162  P.  713; 
St.  Louis  &  S.  F.  R.  Co.  v.  Chester,  138  P.  150,  41  Okl.  369. 

IT  A  stipulation  for  settlement  conditioned  on  all  parties  in  interest  agree- 
ing to  its  terms  within  60  days,  held  void,  where  it  was  not  binding  on  minor 
defendants  and  was  impossible  of  performance.  Whiteley  v.  Watson,  145  P. 
568,  93  Kan.  671. 

(110) 


Art.  2)  COMPROMISE   AND   SETTLEMENT  §    201 

promise  agreement  by  parties  is  sufficient  consideration  to  uphold 
settlement,  and  bars  further  recovery,18  though  the  demand  was 
unfounded,10  or  one  of  the  parties  made  an  error  in  calculation,20 
or  the  amount  agreed  to  be  paid  may  be  much  less  than  is  actu- 
ally due,21  and  though  the  final  issue  be  different  from  that  an- 
ticipated and  other  than  what  the  court  would  have  decreed,-2 
providing  the  settlement  is  not  procured  by  fraud,  misrepresen- 
tation,23 or  duress.24 

is  Jarecki  Mfg.  Co.  v.  Cimarron  River  Oil  &  Gas  Co.  (Okl.)  170  P.  252;  Mar- 
sant  v.  Marsant,  57  P.  958,  60  Kan.  859 ;  Finley  v.  Funk,  12  P.  15,  35  Kan.  668. 

Acceptance  of  part  of  claim  against  county,  which  commissioners  in  good 
faith  claimed  to  have  been  barred  by  limitations,  in  consideration  of  release 
in  full,  held  to  prevent  recovery  of  remainder.  Nolan  v.  Board  of  County 
Com'rs  of  Ellis  County  (Kan.)  168  P.  326. 

Bona  fide  dispute  between  heir  and  school  and  church,  whether  the  latter 
had  acquired  interest  in  property  by  will,  constituted  sufficient  consideration 
for  compromise  in  good  faith.  Shellberg  v.  McMahon,  157  P.  268,  98  Kan.  46. 

Agreement  to  give  a  credit  upon  note,  made  in  good  faith  without  mistake, 
undue  influence,  or  fraud,  based  on  settlement  of  a  disputed  claim,  is  valid 
and  enforceable.  Hollister  v.  Smith,  62  Okl.  191,  162  P.  706. 

A  compromise  of  a  disputed  claim  on  sufficient  consideration,  with  knowl- 
edge of  the  facts  on  which  an  alleged  defense  is  based,  is  a  surrender  of  such 
defense,  when  the  adverse  party  has  executed  the  terms  of  settlement  on  his 
part.  Logsdon  v.  Hudson,  112  P.  118,  83  Kan.  500. 

Where  defendant,  in  settlement  of  existing  liability,  contracted  to  pay  plain- 
tiff $3,000  if  well  proposed  to  be  drilled  on  land  leased  to  defendant  was  a 
paying  well,  and  sold  the  lease  to  a  purchaser,  who  developed  a  paying  well, 
defendant  was  liable  to  plaintiff  for  payment  of  $3,000.  Gem  Oil  Co.  v.  Cal- 
lendar  (Okl.)  173  P.  820. 

.Where  two  parties  in  the  settlement  of  a  controversy  agree  on  the  amount 
due,  and  the  debtor  executes  a  note  therefor,  the  compromise  is  binding  upon 
the  parties.  Kiler  v.  Wohletz,  101  P.  474,  79  Kan.  716,  L.  R.  A.  1915B,  11. 
Where  there  has  been  a  valid  agreement  to  compromise,  it  is  not  admissible 
to  go  back  of  the  settlement  to  determine  who  was  right  in  the  original  con- 
tention. Id. 

i»  Lewis  v.  Gove  County  Telephone  Co.,  147  P.  1122,  95^  Kan.  136,  Ann.  Cas. 
1916B,  1035. 

20  Brooks  v.  Hall,  14  P.  236,  36  Kan.  697. 

21  Minor  v.  Fike,  93  P.  264;  77  Kan.  806. 

Receipt  of  a  sum  less  than  that  claimed  will,  where  the  claim  is  unliqui- 
dated or  disputed,  be  treated  as  a  satisfaction.  Sherman  v.  Pacific  Coast 
Pipe  Co.,  60  Okl.  103,  159  P.  333,  L.  R.  A.  1917A,  716. 

22  Sango  v.  Parks,  44  Okl.  223,  143  P.  1158. 

23  The  law  favors  compromise  and  settlement  of  disputes,  and  when  par- 
ties without  fraud  enter  into  an  agreement  settling  and  adjusting  a  dispute, 

24  See  note  24  on  following  page. 

(Ill) 


§§    201-202      ARBITRATION,  COMPROMISE,  AND   SETTLEMENT  (Ch.  2 

A  defendant  in  an  action  without  merit  may  compromise  the 
litigation  without  making  himself  liable  in  any  way  to  any  third 
party.25 

§  202.     Construction 

A  settlement  agreement  will  be  given  a  reasonable  construction 
to  carry  out  the  intentions  of  the  parties,26  and  the  usual  rules  of 
evidence  apply.21 


neither  is  permitted  afterward  to  deny  it.  Lewis  v.  Kimball,  173  P.  279,  103 
Kan.  173.  Agreement  based  on  a  good  consideration,  settling  amount  to  which 
plaintiff  was  entitled  for  services  in  finding  a  purchaser  for  defendant's  land, 
made  without  fraud  or  concealment,  is  binding,  regardless  of  the  merits  of 
controversy.  Id. 

If  there  is  a  bona  fide  controversy,  and  a  compromise  thereof,  such  settle- 
ment, in  the  absence  of  fraud  or  mistake,  is  binding  upon  the  parties  there- 
to, as  an  original  contract.  Schmidt  v.  Demple,  52  P.  906,  7  Kan.  App.  811. 

A  railroad  employe  who  made  a  settlement  under  misrepresentations  by  the 
company's  physicians  as  to  the  extent  of  his  injuries  held  entitled  to  relief, 
whether  they  were  innocently  or  intentionally  false.  Chicago,  R.  I.  &  P.  Ry. 
Co.  v.  Roger's,  60  Okl.  249,  159  P.  1132. 

In  an  action  to  set  aside  a  settlement  as  obtained  by  fraud,  it  was  found 
by  the  referee  that  the  settlement  should  be  set  aside  and  opened  as  to  three 
particular!  items,  and  that  the  rest  should  stand,  and  this  finding  was  ap- 
proved by  the  court,  and  there  was  evidence  tending  to  support  it.  Held,  that 
the  findings  as  to  the  three  particular  items,  and  as  to  the  balance  of  the  set- 
tlement, not  being  contradictory,  the  district  court  was  authorized  to  correct 
the  particular  wrong  and  leave  the  settlement  otherwise  undisturbed.  Reid 
v.  Beyle,  18  P.  614,  39  Kan.  559. 

2-t  The  fact  that  a  creditor  insisted  that  a  larger  amount  was  due  than  the 
creditor  admitted,  and  that  he  threatened  to  enforce  his  claim  by  a  civil  ac- 
tion, does  not  constitute  duress.  Kiler  v.  Wohletz,  101  P.  474,  79  Kan.  716,  L. 
R.  A.  1915B,  11.  The  fact  that  a  creditor  insisted  that  a  larger  amount  was 
due,  and  that  he  threatened  a  civil  suit,  does  not  constitute  fraud.  Id. 

25  Avery  v.  Howell,  172  P.  995,  103  Kan.  31. 

26  A  written  contract,  settling  all  items  of  indebtedness  existing  between 
parties  thereto  on  the  day  it  is  signed,  includes  existing  debts,  but  not  those 
thereafter  arising.    Ryan  v.  Myers,  101  Kan.  261,  167  P.  1043. 

An  agreement  between  an  officer  and  stockholder  of  a  corporation  and  a  pur- 
chaser of  his  stock  that  such  officer  is  "to  be  given  his  salary  including  to 
day.  If  it  is  overdrawn  he  to  pay  back.  On  sale  he  is  to  have  no  claim  on 
anything,  credits,  supplies  or  other  assets  of  Co.  &  the  differences  are  then 
considered  adjusted,"  held,  not  an  adjustment  of  the  officer's  salary,  so  as  to 

27  in  an  action  on  a  note  given  in  consideration  of  a  contract  of  settlement 
between  joint  owners  of  property,  evidence  as  to  matters  settled  by  the  agree- 
ment held  properly  excluded.    Harn  v.  Hare,  48  Okl.  3,  151  P.  615. 

(112) 


Art.  2)  COMPROMISE  AND   SETTLEMENT  §   202 

preclude  him  from  claiming  the  full  salary  due  him.    Keating  v.  Mutual  Laun- 
dry Co.,  133  P.  152,  90  Kan.  24. 

Where  the  parties  made  a  contract  of  settlement  concerning  their  dispute 
about  the  title  to  certain  land,  and  executed  the  same,  and,  to  carry  the  same 
into  effect,  delivered  their  respective  deeds  for  portions  of  the  land,  they  were 
bound  by  such  agreement  of  settlement,  notwithstanding  the  deeds  did  not 
sufficiently  describe  the  land  to'  convey  the  legal  title.  Anderson  v.  Canter, 
63  P.  285,  10  Kan.  App.  167. 

Plaintiff  made  a  written  offer  to  compromise  his  claim  if  paid  within  10 
days.  Defendant's  letter  accepting  the  offer,  and  inclosing  a  check,  did  not 
reach  plaintiff  until  twelve  days  thereafter.  The  plaintiff  cashed  the  check, 
and  retained  the  proceeds,  but  sent  no  receipt  as  requested,  and  later  sued 
for  a  balance.  Held,  that,  although  time  was  of  the  essence  of  the  proposi- 
tion made,  the  plaintiff,  by  retaining  the  part  payment,  produced  the  same 
effect  as  if  defendant's  letter  had  been  an  original  offer  of  compromise  which 
the  plaintiff  accepted,  and  which  was  fully  complied  with  by  the  payment  of 
the  stipulated  amount.  Hutchinson  &  S.  R.  Co.  v.  Wallace,  52  P.  458,  7  Kan. 
App.  612. 

Defendant,  in  an  action  for  damages  for  wrongfully  withholding  possession 
of  land,  conveyed  his  interest  in  the  land  to  another,  and  entered  into  an 
agreement  with  plaintiffs  pursuant  to  which  he  paid  to  them  a  sum  of  money 
in  settlement  of  all  claims  for  the  detention  of  the  land  up  to  the  time  of  the 
conveyance,  and  the  suit  was  consequently  dismissed.  This  agreement  pro- 
vided that  it  should  not  cover  any  claim  against  defendant's  grantee  for  tak- 
ing possession  of  the  land,  nor  any  right  which  plaintiff  might  have  against 
such  grantee.  A  contemporaneous  agreement  was  entered  into  between  plain- 
tiffs, defendant,  and  defendant's  grantee,  which  provided  for  the  substitution 
of  the  grantee  in  lieu  of  defendant  in  the  action  which  was  then  pending 
against  defendant  and  in  all  subsequent  proceedings  relating  thereto.  Held, 
that  the  compromise  between  defendant  and  plaintiffs  did  not  operate  as  a 
satisfaction  of  plaintiffs'  claim  against  defendant's  grantee,  nor  preclude  the 
maintenance  of  an  action  by  plaintiffs  against  defendant's  grantee  for  dam- 
ages for  the  wrongful  withholding  of  the  possession  of  the  land  from  the 
date  of  the  conveyance.  Meriwether  v.  Howe,  82  P.  723,  72  Kan.  645. 

Where,  on  a  creditors'  bill  being  brought  to  assert  title  to  land  conveyed  to 
the  debtor's  wife,  a  settlement  is  made,  and  the  action  is  dismissed  on  the 
debtor  giving  his  note,  the  land  conveyed  to  the  wife  cannot  be  attached  in 
a  subsequent  action  on  the  note.  Lanphear  v.  Ketcham,  37  P.  119,  53  Kan. 
799.  . 

HON.PL.&  PBAC.— 8  (113) 


203  JURISDICTION  (Ch.  3 


JURISDICTION 

Sections 

203-216.    Article  I. — Nature,  scope,  elements,  and  exercise. 
217-247.     Article    II. — Original,    concurrent,    and    appellate    jurisdiction. 

ARTICLE  I 

NATURE,   SCOPE,  ELEMENTS,  AND  EXERCISE 

Sections 

203.  Jurisdiction  defined. 

204.  Basis  and  elements. 

205.  Original  jurisdiction. 

206.  Scope,  extent,  and  place  of  exercise. 

207.  Territorial  extent. 

208.  Where  parties  reside  or  may  be  found. 

209.  Jurisdiction  of  subject-matter. 

210.  Trusts. 

211.  Consent  and  waiver. 

212.  Ancillary  jurisdiction. 

213.  Rule  of  comity. 

214.  Shown  by  record. 

215.  Determination  of  jurisdiction. 

216.  Objections. 

§  203.     Jurisdiction  defined 

Jurisdiction  is  the  power  to  hear  and  determine  the  subject-mat- 
ter in  controversy  between  parties  to  a  suit,  to  adjudicate  or  ex- 
ercise any  judicial  power  over  them,  and  if  the  law  confers  pow- 
er to  render  a  judgment  or  decree  the  court  has  jurisdiction.1  It 
does  not  relate  to  rights  of  parties,  but  to  the  power  of  the  court.  - 

1  Welch  v.  Focht  (Okl.)  171  P.  730,  L.  R.  A.  1918D,  1163 ;  National  Surety 
Co.  v.  S.  H.  Hanson  Builders'  Supply  Co.,  64  Okl.  59,  165  P.  1136;    Antene  v. 
Jensen,    47  Okl.  352,  148  P.  727;  Model  Clothing  Co.  v.  First  Nat.  Bank   of 
Gushing,  61  Okl.  88,  160  P.  450.    It  is  the  power  of  courts  and  judicial  officers 
to    take  cognizance  of  and  determine  the  subject-matter  in  controversy    be- 
tween parties  to  a  pending  proceeding,  and  to  exercise  judicial  power.    Apache 
State  Bank  v.  Voight,  61  Okl.  253,  161  P.  214. 

Jurisdiction  is  the  authority  by  which  courts  and  judicial  officers  take  cog- 
nizance of  and  decide  cases,  so  that,  if  a  court  has  jurisdiction  of  the  per- 
sons to  the  action,  and  the  cause  is  the  kind  of  a  cause  triable  in  such  court, 

2  Parmenter  v.  Ray,  58  Okl.  27,  158  P.  1183 ;    Dickson  v.  Lowe  (Okl.)  163  P. 
523. 

(114) 


Art.  1)  NATURE,  SCOPE,  ELEMENTS,  AND   EXERCISE      §§    203~206 

A  court  of  competent  jurisdiction  is  one  having"  power  and  au- 
thority of  law  at  time  of  acting  to  do  the  particular  act.3 

§  204.     Basis  and  elements 

The  jurisdiction  of  the  several  courts  of  this  state  and  of  the 
judges  thereof  is  regulated  by  the  Constitution  and  laws  of  the 
state.4 

The  elements  of  jurisdiction  are  a  court  created  by  law,  author- 
ity to  hear  and  determine  causes,  the  power  to  render  judgment, 
authority  over  parties  and  the  thing  adjudicated,  and  authority 
to  decide  the  question  involved.5 

In  the  absence  of  seizure  of  property  or  debt  of  a  nonresident 
defendant  on  which  judgment  is  to  operate,  power  to  render  judg- 
ment is  lacking,  and  the  fact  that  there  is  property  within  the  ju- 
risdiction does  not  give  the  court  jurisdiction.6 

§  205.     Original  jurisdiction 

The  phrase  "original  jurisdiction"  means  the  power  to  entertain 
cases  in  the  first  instance  as  distinguished  from  appellate  juris- 
diction, and  does  not  mean  exclusive  jurisdiction.  A  court  of 
original  jurisdiction  is  one  in  which  an  action  has  its  origin.7 

§  206.     Scope,  extent,  and  place  of  exercise  

Where  the  court  has  jurisdiction  over  the  persons  to  the  action 
by  legal  service  or  voluntary  appearance,  and  the  cause  is  of  a 
kind  triable  in  such  court,  it  has  jurisdiction  to  render  any  right- 
ful judgment  therein.8 

Courts  possess  inherent  power  to  prevent  any  abuse  of  their 
process,9  and  to  correct  errors  in  their  own  proceedings.10  The 

it  has  jurisdiction  of  the  subject  of  the  action,  and  has  the  power  to  render 
any  rightful  judgment  therein.  Parker  v.  Lynch,  56  P.  1082,  7  Okl.  631 ;  Bock- 
finger  v.  Foster,  62  P.  799,  10  Okl.  488,  judgment  affirmed  23  S.  Ct.  836,  190 
U.  S.  116,  47  L.  Ed.  975. 

s  Ex  parte  Adair,  115  P.  277,  5  Okl.  Or.  374 ;  Ex  parte  Justus,  104  P.  933.  3 
Okl.  Cr.  Ill,  25  L.  R.  A.  (N.  S.)  483 ;  In  re  Wilkins,  7  Okl.  Cr.  422,  115  P.  1118. 

*  In  re  Jewett,  77  P.  567,  69  Kan.  830. 

s  Roth  v.  Union  Nat.  Bank  of  Bartlesville,  58  Okl.  604,  160  P.  505. 

e  .Waldock  v.  Atkins,  60  Okl.  38,  158  P.  587. 

"  Burks  v.  Walker,  109  P.  544,  25  Okl.  353. 

s  Crutcher  v.  Block,  91  P.  895,  19  Okl.  246,  14  Ann.  Gas.  1029. 

9  Patterson  v.  Imperial  Window  Glass  Co.,  137  P.  955,  91  Kan.  201. 

10  Todd  v.  Orr,  44  Okl.  459,  145  P.  393. 

(115) 


§§  206-208  JURISDICTION  (Ch.  3 

"district  court"  is  a  tribunal  established  to  exercise  definite  ju- 
dicial powers  at  a  designated  time  and  place.  The  district  judge 
constitutes  the  court  only  when  performing  the  functions  of  the 
same  at  the  time  and  place  fixed  by  law,  and  the  district  judge, 
as  contradistinguished  from  the  court,  cannot  determine  motions 
to  vacate  judgments  or  orders.11 

A  judge  cannot  perform  any  judicial  act  while  beyond  the  state.12 

§  207.     Territorial  extent 

The  jurisdiction  of  the  several  district  courts  and  of  the  judges 
thereof  in  civil  matters  is  confined  to  their  respective  districts.13 

Not  every  action  growing  out  of  transactions  concerning  real 
property  is  local,  and  where  the  decree  sought  is  to  operate  on  the 
person,  and  not  upon  the  real  property,  the  location  of  the  proper- 
ty indirectly  affected  is  not  material.14 

A  surety  on  a  guardian's  bond  executed  in  Arkansas  may,  on 
his  removal  to  Oklahoma,  be  sued  here  for  breach  of  the  bond.15 

§  208.     Where  parties  reside  or  may  be  found 

An  action  to  set  aside  a  conveyance  for  fraud  may  be  brought 
in  any  jurisdiction  where  the  guilty  parties  may  be  found,  and  the 
court  will  have  authority,  not  only  to  declare  the  conveyance  void, 
but  to  compel  defendant  to  do  the  things  necessary,  according  to 
the  lex  loci  rei  sitae,  which  they  could  voluntarily  do,  to  give  effect 
to  the  decree.16 

A  city  of  another  state  which  is  operating  a  water  plant  in  this 
state  cannot  be  sued  in  this  state  for  injuries  sustained  in  that  city 
through  its  negligence.17 

11  Eichoff  v.  Caldwell,  51  Okl.  217,  151  P.  860,  L.  R.  A.  1917E,  359. 

izDunlap  v.  Humph,  43  Okl.  491,  143  P.  329. 

The  parties  to  a  proceeding  in  error  cannot  by  agreement  dispense  with  the 
necessity  of  the  case-made  being  approved  and  signed  by  the  judge  while 
within  the  state.  Dunlap  v.  Rumph,  143  P.  329,  43  Okl.  491. 

is  In  re  Jewett,  77  P.  567,  69  Kan.  830. 

i*  Continental  Gin  Co.  v.  Arnold  (Okl.)  167  P.  613,  L.  R.  A.  1918B,  511. 

Where  a  mere  trespasser  entered  on  land  in  Missouri,  and  removed  sand 
therefrom  to  Kansas,  where  he  converted  it  to  his  own  use,  the  owner  of  the 
land  could  maintain  an  action  'in  Kansas  for  the  value  of  the  sand,  as  such 
an  action  is  transitory.  McGonigle  v.  Atchison,  7  P.  550,  33  Kan.  726. 

is  Hays  v.  King,  44  Okl.  180,  143  P.  1142. 

i«  Fuller  v.  Homer,  77  P.  88,  69  Kan.  467. 

IT  Marshall  v.  Kansas  City,  148  P.  637,  95  Kan.  548,  L,.  R.  A.  1915F,  1025. 

(116) 


Art.  1)  NATURE,  SCOPE,  ELEMENTS,  AND   EXERCISE      §§   208-210 

That  defendants,  with  one  exception,  are  nonresidents,  and  no 
personal  judgment  can  be  rendered  against  them,  does  not  de- 
prive the  court  of  jurisdiction,  in  an  action  to  declare  a  deed  a 
mortgage.18 

§  209.     Jurisdiction,  of  subject-matter 

Jurisdiction  of  the  subject-matter  is  the  power  to  deal  with  the 
general  subject  involved  in  the  action.19 

It  is  to  be  determined  from  the  allegations  of  the  petition,  and, 
if  the  petition  fails  to  disclose  such  facts  as  will  authorize  a  court 
of  equity  to  hear  and  determine  the  matter  complained  of,  such 
court  is  without  jurisdiction.20 

Where  the  necessary  parties  are  before  a  court  of  equity,  it  is 
immaterial  that  the  res  of  the  controversy  is  beyond  the  territorial 
jurisdiction  of  the  court,  and  it  has  the  power  to  compel  defendant 
to  do  all  things  necessary,  according  to  the  lex  loci  rei  sitse,  which 
he  could  do  voluntarily,  to  give  full  effect  to  the  decree  against 
him.21 

A  district  court  having  jurisdiction  of  the  holder  of  a  title  to  land 
has  jurisdiction  to  render  a  judgment  requiring  him  to  make  a 
conveyance  of  it  and  to  enforce  such  decree  by  process  against 
him,  where  the  land  is  situated  in  another  state.22 

§  210.    Trusts 

The  power  to  establish  and  enforce  a  constructive  trust  is  a 
matter  properly  cognizable  in  a  court  of  equity.23  The  rule  which 
limits  the  jurisdiction  of  equity  to  cases  where  there  is  no  ade- 
quate remedy  at  law  does  not  apply.24 

Where  court  of  general  jurisdiction  has  secured  jurisdiction  of 
parties  holding  legal  titles  to  land  in  another  state,  it  may  impress 
trust  as  to  such  land  and  order  trustees  to  execute  conveyance.25 

is  Clark  v.  Shoesmith,  139  P.  426,  91  Kan.  797. 

19  Glacken  v.  Andrew  (Okl.)  169  P.  1096. 

20  Myers  v.  Berry,  41  P.  580,  3  Okl.  612. 

21  Gordon  v.  Munn,  106  P.  286,  81  Kan.  537,  25  L.  R.  A.  (N.  S.)  917. 

22  People's  State  Bank  v.  T'Miller,  116  P.  884,  85  Kan.  272. 

asGoldrick  v.  Roxana  Petroleum  Co.  (Okl.)  176  P.  932;  McCoy  v.  McCoy, 
121  P.  176,  30  Okl.  379,  Ann.  Cas.  1913C,  146. 

24  Goldrick  v.  Roxana  Petroleum  Co.  (Okl.)  176  P.  932. 

25  Meador  v.  Manlove,  156  P.  731,  97  Kan.  706. 

When  a  district  court  has  jurisdiction  of  the  parties,  it  has  jurisdiction  to 

(117) 


§§  210-211  JURISDICTION  (Ch.  3 

The  district  court  has  jurisdiction  of  the  subject-matter  of  an 
action  to  declare  a  resulting  trust,  where  it  has  acquired  jurisdic- 
tion of  the  parties  thereto.20 

Equity  will  not  permit  a  trust  to  fail  for  want  of  a  trustee.27 

§  211.     Consent  and  waiver 

Jurisdiction  of  the  person  may  be  conferred  by  consent,  or  the 
want  thereof  waived  by  voluntary  appearance,28  but  parties  cannot 
by  consent  or  stipulation  invest  a  court  with  jurisdiction  not  giv- 
en by  law,  and  this  rule  applies  to  causes  involving  the  necessary 
jurisdictional  amount.28 

enforce  trusts,  although  in  so  doing  the  title  to  land  which  does  not  lie  with- 
in its  territorial  limits  is  incidentally  affected.  Manley  v.  Carter,  52  P.  915. 
7  Kan.  App.  86. 

26  Boekfinger  v.  Foster,  62  P.  799,  10  Old.  488,  judgment  affirmed  23  S.  Ct. 
836,  190  U.  S.  116,  47  L.  Ed.  975. 

27  Hill  v.  Hill,  49  Okl.  424,  152  P.  1122. 

as  Hobbs  v.  German- American  Doctors,  78  P.  356,  14  Okl.  236. 

Where  the  district  court  had  original  jurisdiction  of  the  subject-matter, 
and  the  case  comes  into  that  court  improperly  by  appeal,  and  both  parties 
appear  and  go  to  trial  without  objection,  the  question  of  jurisdiction  as  to 
the  manner  of  getting  in  court  is  waived.  School  Dist.  No.  94,  Grant  Coun- 
ty, v.  Gautier,  73  P.  954,  13  Okl.  194. 

Where  a  trustee  under  a  chattel  mortgage  brings  an  action  to  enforce  his 
trust,  he  thereby  confers  on  the  court  in  which  the  action  is  brought  jurisdic- 
tion over  him  in  regard  to  the  settlement  of  a  counterclaim  interposed  by  de- 
fendant concerning  the  same  transaction,  though  such  jurisdiction  does  not 
otherwise  exist,  under  Code  Civ.  Proc.  §  55,  providing  that  actions,  with  cer- 
tain exceptions  mentioned,  must  be  brought  in  the  county  where  the  defend- 
ants or  some  of  them  reside  or  may  be  summoned.  Wyman  v.  Herard,  59  P. 
1009,  9  Okl.  35. 

Where  receivers  of  a  railroad  contest  matters  at  issue  in  proceedings  to  en- 
force a  lien  against  railroad  property,  they  cannot  be  heard  for  the  first  time 
after  an  adverse  decision  to  complain  that  the  court  was  without  jurisdiction, 
even  though  they  were  appointed  by  another  court.  Trocon  v.  Scott  City 
Northern  R.  Co.,  139  P.  357,  91  Kan.  887. 

Where  jurisdiction  of  the  person  is  lost  by  irregularities,  it  may  be  restored 
by  the  appearance  or  waiver  of  the  defendants  or  failure  to  duly  object. 
Hobbs  v.  German-American  Doctors,  78  P.  356,  14  Okl.  236. 

Where  local  and  nonresident  defendants  were  jointly  sued  and  nonresident 
defendant  appeared  generally  without  raising  question  of  jurisdiction,  his  de- 
murrer to  evidence  and  his  motion  to  dismiss  for  want  of  jurisdiction  were 
properly  overruled.  Makemson  v.  Edwards,  101  Kan.  269,  166  P.  508. 

As  to  appearance,  see  post,  §§  506-511. 

29  Model  Clothing  Co.  v.  First  Nat.  Bank  of  Gushing,  61  Okl.  88,  160  P.  450. 

The  question  of  jurisdiction  of  the  subject  matter  cannot  be  waived  by  the 
parties,  and  the  court  should,  on  its  own  motion,  though  the  question  be  not 

(118) 


Art.  1)  NATURE,   SCOPE,  ELEMENTS,  AND   EXERCISE         §§    211~213 

Filing  a  Demurrer  to  a  petition  and  moving  to  make  it  more 
definite  is  not  a  request  for  affirmative  relief,  such  as  will  waive 
defendant's  objection  to  jurisdiction  over  his  person.  Where  de- 
fendant's objection  to  the  court's  jurisdiction  of  his  person  has 
been  overruled,  he  may  defend  'without  waiving  his  objection ; 
but  where  he  asks  affirmative  relief  after  his  objection  to  jurisdic- 
tion over  his  person  has  been  overruled,  he  waives  such  objection.30 

§  212.     Ancillary  jurisdiction 

A  court  having  possession  of  property  may  determine  all  ques- 
tions relative  to  title,  possession,  and  control  of  same.31 

§  213.     Rule  of  comity 

Where  actions  are  properly  brought  and  are  pending  in  differ- 
ent jurisdictions,  the  rule  of  comity  does  not  influence  the  proceed- 
ings of  the  court  to  which  jurisdiction  first  attaches.32 

The  laws  of  another  state  will  not  be  given  force  in  this  state 
as  a  matter  of  comity,  where  it  would  be,  in  effect,  to  overturn  the 
policy  of  this  state  with  respect  to  such  cases,  or  be  in  violation 
of  our  express  statute.83 

Comity  does  not  require  that  the  courts  of  Oklahoma  uphold 
foreign  contracts  violative  of  the  penal  statutes  or  public  policy 
of  Oklahoma,  regardless  of  the  validity  of  such  contracts  in  the 
state  where  they  were  made.34  But  t,he  rule  that  a  penal  statute 
will  not  be  enforced  outside  the  territorial  jurisdiction  of  the  Leg- 


raised"  by  the  parties,  inquire  into  its  jurisdiction.  Apache  State  Bank  v. 
Voight  (Okl.)  161  P.  214. 

Where  the  statute  confers  on  the  road  viewers  and  the  board  of  county 
r-ommissioners  power  to  determine  whether  or  not  a  proposed  public  road  is 
of  public  utility,  the  parties  to  proceedings  for  laying  out  a  road  cannot  by 
agreement  confer  on  the  court  the  power  to  determine  such  question  on  ap- 
peal from  an  award  of  damages  made  by  the  commissioners  after  determining 
the  question  in  the  affirmative.  Van  Bentham  v.  Osage  County  Com'rs,  30  P. 
Ill,  49  Kan.  30. 

so  Commonwealth  Cotton  Oil  Co.  v.  Hudson,  62  Okl.  23,  161  P.  535. 

si  Darrough  v.  First  Nat.  Bank  of  Claremore,  56  Okl.  647,  156  P.  191. 

The  ancillary  jurisdiction  of  a  court  to  determine  all  questions  as  to  rights 
in  property  of  which  it  has  taken  possession,  may  be  exercised  by  federal 
courts,  though  not  authorized  by  statute.  Id. 

32  Missouri,  K.  &  T.  Ry.  Co.  v.  Bradshaw,  132  P.  327,  37  Okl.  317. 

ss  Mackey  v.  Pettijohn.  49  P.  636,  6  Kan.  App.  57. 

a*  Coffe  &  Carkeuer  v.  Wilhite,  56  Okl.  394,  156  P.  169. 

(119) 


§  214  JURISDICTION  (Ch.  3 

islature  enacting  it  applies  only  to  statutes  entirely  penal,  and  not 
to  those  which  are  in  part  compensatory.35 

§  214.     Shown  by  record 

The  county  court,  while  of  limited  jurisdiction,  is  a  court  of 
record,  and  not  an  inferior  court  in  the  sense  that  its  judgment 
may  be  disregarded  because  jurisdictional  facts  do  not  appear  on 
the  face  of  .its  proceedings.36 

The  general  rule  that  the  silence  of  the  record  of  an  inferior 
tribunal  on  a  jurisdictional  point  is  fatal  applies  in  cases  of  col- 

ss  Great  Western  Machinery  Co.  v.  Smith,  124  P.  414,  87  Kan.  331,  41  L.  R. 
A.  (N.  S.)  379,  Ann.  Cas.  1913E,  243. 

•Rev.  St.  Mo.  1909,  §  3151,  making  railroads  responsible  for  loss  by  fire,  be- 
ing compensatory  and  remedial,  may  be  enforced  in  an  action  in  Kansas. 
Hollinger  v.  Missouri,  K.  &  T.  Ry.  Co.,  146  P.  1034,  94  Kan.  316,  Ann.  Cas. 
1916D,  802. 

A  contract  of  purchase  made  in  Missouri  contrary  to  Rev.  St.  1899,  §§  8965, 
8966  (Ann.  St.  1906,  pp.  4150,  4152),  relating  to  pools,  trusts,  and  monopolies, 
subject  to  be  defeated  when  sought  to  be  enforced  in  that  state  by  section  8970 
(page  4153),  providing  that  such  purchasers  shall  not  be  liable  for  the  price, 
but  may  treat  the  violation  of  the  statute  as  a  defense,  when  sought  to  be 
enforced  in  Oklahoma,  is  subject  to  the  same  defense  under  the  laws  of  com- 
ity between  different  states ;  the  provisions  of  section  8970  not  being  contrary 
to  the  public  policy  of  the  state.  Wagner  v.  Minnie  Harvester  Co.,  106  P. 
969,  25  Okl.  558. 

A  cause  of  action  accrued  in  Kansas  under  Laws  Kan.  1907,  c.  281,  §  1,  mak- 
ing every  railroad  liable  for  damages  to  any  employ^  in  consequence  of  negli- 
gence of  its  agents,  or  by  any  mismanagement  of  its  engineers  or  other  em- 
ployes. Const.  Okl.  art.  9,  §  36,  concurs  in  holding  that  the  act  complained  of 
under  the  Kansas  statute  gives  a  right  of  action.  Held,  that  the  Kansas  stat- 
ute 4s  not  against  the  public  policy  of  Oklahoma,  and,  although  the  right  of 
action  exists  by  statute,  and  not  by  the  common  law,  it  may  be  enforced  in 
the  courts  of  Oklahoma.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Mclntire,  119  P.  1008, 
29  Okl.  797. 

A  Nebraska  statute,  providing  that  an  attorney  who  was  guilty  of  fraud  and 
deceit  shall  forfeit  treble  damages,  imposes  a  penalty,  and  is  not  enforceable 
in  Oklahoma.  Mohr  v.  Sands,  44  Okl.  330,  133  P.  238. 

so  Rogers  v.  Duncan,  57  Okl.  20,  156  P.  678. 

County  courts  are  entitled  to  the  sarae  presumption  of  jurisdiction  as  dis- 
trict courts.  Ex  parte  Brown,  105  P.  577,  3  Okl.  Cr.  329. 

In  proceedings  properly  before  the  probate  court  and  within  its  jurisdiction, 
it  is  not  necessary  that  its  judgment  should  contain  a  recitation  of  the  facts 
on  which  the  jurisdiction  of  the  court  depends.  Greer  v.  McNeal,  69  P.  891, 
11  Okl.  519,  judgment  affirmed  69  P.  893,  11  Okl.  526;  Cooper  v.  Newcomb 
(Okl.)  174  P.  1029 ;  Holmes  v.  Holmes,  111  P.  220,  27  Okl.  140,  30  L.  R.  A.  (N. 
K.)  920. 

(120) 


Art.  1)  NATURE,  SCOPE,  ELEMENTS,  AND   EXERCISE         §§   215-216 

lateral  attack  to  those  jurisdictional  facts  only  which  the  law  di- 
rects the  tribunal  to  enter  on  its  record.37 

§  215.     Determination  of  jurisdiction 

Courts  have  inherent  power  to  inquire  into  their  jurisdiction.38 

Where  the  jurisdiction  of  the  court  depends  on  a  fact  which  it  is 

required  to  ascertain  and  decide,  its  judgment  determining  that  fact 

does  exist  is  conclusive  evidence  of  jurisdiction  until  set  aside  or 

reversed  by  direct  proceedings.39 

While  superior,  courts  will  construe  the  proceedings  of  inferior 
tribunals  with  regard  to  mere  irregularities  with  great  liberality,  so 
as  to  uphold  such  proceedings,  yet  they  will  also  rule  strictly  with 
regard  to  matters  of  jurisdiction,  for  the  purpose  of  keeping  such 
inferipr  tribunals  strictly  within  the  limits  of  their  jurisdiction.40 

§  216.     Objections 

When  the  court  has  no  jurisdiction  of  the  subject-matter,  either 
party  to  the  suit  may  avail  himself  of  the  objection  at  any  stage, 
and  the  court  on  its  own  motion  will  refuse  to  proceed  further,  and 
dismiss  the  case  when  its  attention  is  called  to  the  fact.41 


37  Gehlenberg  v.  Hartley,  165  P.  286,  100  Kan.  487. 

Presumptions. — An  action  was  commenced  in  the  district  court  to  reform 
a  real  estate  mortgage  and  to  foreclose  the  same.  Service  of  summons  was 
obtained  by  publication.  From  the  affidavit  for  service  it  appeared  that  de- 
fendant had  removed  from  the  county  and  resided  in  the  region  of  the  coun- 
try known  as  Pike's  Peak,  and  that  service  of  summons  could  not  be  made  on 
defendant.  The  date  of  the  filing  of  the  affidavit  was  not  shown.  Held  that, 
in  the  absence  of  any  showing  to  the  contrary,  it  would  §  be  presumed  that  the 
district  court  had  jurisdiction  to  render  a  judgment  reforming  and  foreclosing 
the  mortgage.  Carey  v.  Reeves,  5  P.  22,  32  Kan.  718. 

Where  judgment  is  rendered  by  the  district  court  under  Laws  1877,  c.  39, 
relating  to  the  collection  of  delinquent  taxes  on  land  bid  in  by  counties  at  tax 
sales,  etc.,  and  a  sheriff's  deed  founded  thereon,  and  an  admission  of  the  par- 
ties that  the  files  of  the  court  are  lost  and  cannot  be  found,  are  in  evidence, 
they  are  sufficient,  aided  by  the  presumption  that  jurisdiction  was  rightfully 
assumed,  to  show  jurisdiction  to  render  the  judgment,  if  nothing  to  the  con- 
trary is  shown.  English  v.  Woodman,  21  P.  283,  40  Kan.  752: 

Circuit  courts  in  Ohio  are  presumed  to  be  courts  of  general  jurisdiction. 
Poll  v.  Hicks,  72  P.  847,  67  Kan.  191. 

ss  Adair  v.  Montgomery  (Okl.)  176  P.  911 ;  Washburn  v.  Delaney,  30  Okl.  789, 
120  P.  620. 

39  In  re  Wallace,  89  P.  687,  75  Kan.  432. 

40  State  v.  Horn,  9  P.  208,  34  Kan.  556. 

41  Myers  v.  Berry,  41  P.  580,  3  Okl.  612. 

(121) 


§  217  JURISDICTION  (Ch. 


ARTICLE  II 

ORIGINAL,   CONCURRENT,   AND   APPELLATE   JURISDICTION 

Sections 

217.  Concurrent  jurisdiction. 

218.  Personal  injuries. 

219.  Appeals — From  police  judges  and  justices  of  the  peace. 

220.  From  town  jiistice  court. 

221.  From  county  commissioners. 

222.  How  taken. 

223.  State  and  federal  courts. 

224.  Transfer  of  causes. 

225.  Transfer  to  state  courts. 

226.  County  courts — Jurisdiction — Judge  pro  tempore. 
227-  Amount  involved. 

228.  Probate  jurisdiction — Sessions. 

229.  Title  involved. 

230.  Bastardy  proceedings. 

231.  Appellate  jurisdiction. 

232.  District  courts. 

233.  Special  cases. 

234.  Amount  involved. 

235.  Appeals  from  county  court. 

236.  Appeals  in  probate  cases. 

237.  Indians  and  Indian  lands. 

238.  Indian  lands. 

239.  Misconduct  in  office. 

240.  Taxes  and  assessments. 

241.  Public  lands. 

242.  Vested  when — Exemption  from  taxation. 

243.  Equity. 

244.  Foreclosure. 

245.  Superior  courts. 

246.  Supreme  Court. 

247.  Appeals  from  county  court. 

§  217.     Concurrent  jurisdiction 

Concurrent  jurisdiction  means  the  jurisdiction  of  several  different 
tribunals,  each  authorized  to  deal  with  the  same  subject-matter.4- 

Where  proceedings  are  commenced  relative  to  the  same  subject-- 
matter in  two  courts  having  equal  concurrent  jurisdiction,  the  court 
which  first  issued  its  process  will  be  deemed  to  have  been  the  first 
to  take  jurisdiction  of  the  subject-matter,  and  hence  entitled  to 
retain  possession  of  the  proceedings  to  the  exclusion  of  the  other 

42  Oklahoma  Fire  Ins.  Co.  v.  Phillip,  111  P.  334,  27  Okl.  234. 
(122) 


Art.  2)  ORIGINAL,   CONCURRENT,  OR  APPELLATE  §§    217-219 

court,  though  the  process  of  the  latter  was  served  before  that  of  the 
former.43 

Between  courts  of  equal  authority,  that  one  which  first  obtains 
jurisdiction  will  be  permitted  to  pursue  it  to  the  end  U>  the  exclu- 
sion of  all  others,  and  will  not  permit  its  jurisdiction  to  be  subvert- 
ed by  resort  to  some  other  tribunal.44 

The  rule  that  possession  of  property  of  which  one  court  has  taken 
jurisdiction  cannot  be  interfered  with  by  a  court  of  concurrent 
jurisdiction  merely  protects  the  immediate  possession  of  the  first 
court,  and  does  not  deprive  another  court  of  jurisdiction  to  deter- 
mine controversies  over  the  same  property.  Thus  a  state  court's 
jurisdiction  to  cancel  a  deed  conveying  a  right  of  way  to  a  rail- 
road company  is  not  ousted  by  the  pendency  of  a  former  suit  in 
federal  court  to  foreclose  a  mortgage  given  by  the  railroad  company 
on  its  right  of  way.45 

§  218.     Personal  injuries 

"The  right  of  action  to  recover  damages  for  personal  injuries  not 
resulting  in  death  arising  and  occurring  in  hazardous  employments, 

*  *     *     except  the  right  of  action  reserved  to  the  State  Industrial 
Commission  for  the  benefit  of  an  injured  employee,     *     *     *     is 

*  *     *     abrogated,  and  all  jurisdiction  of  the  courts  of  this  state 
over  such  causes,  except  as  to  the  causes  reserved  to  the  State  In- 
dustrial Commission  for  the  benefit  of  injured  employees,     *     *     * 
is     *     *     *     abolished." 4G 

§  219.     Appeals — From  police  judges  and  justices  of  the  peace 
"In  addition  to  the  jurisdiction  and  powers  conferred  upon  dis- 

43  Chicago,  K.  &  W.  R.  Co.  v.  Harris,  21  P.  1071,  42  Kan.  223. 

44  Ewing  v.  Mallison,  70  P.  369,  65  Kan.  484,  93  Am.  St.  Rep.  299. 

As  between  courts  of  concurrent  jurisdiction,  that  court  first  acquiring  ju- 
risdiction may  draw  to  itself  all  the  pertinent  issues  between  the  parties,  and 
enjoin  other  courts  from  interfering.  Juhlin  v.  Hutchings,  135  P.  598,  90  Kan. 
£18,  judgment  affirmed  on  rehearing  136  P.  942,  90  Kan.  865. 

As  a  general  rule,  a  court  which  first  acquires  the  custody  and  control  of 
property  and  assets  by  the  appointment  of  a  receiver  will  retain  such  con- 
trol until  the  end  of  the  litigation,  to  the  exclusion  of  interference  by  other 
courts  of  concurrent  jurisdiction.  Missouri  Pac.  Ry.  Co.  v.  Love,  59  P.  1072. 
61  Kan.  433 ;  Martin  v.  Harnage,  110  P.  781,  26  Okl.  790,  38  L.  R.  A.  (X.  S.) 
228 ;  Lanyon  v.  Braden,  48  Okl.  689,  150  P.  677. 

45  Brown  v.  Stuart,  133  P.  725,  90  Kan.  302. 
4<s  Sess.  Laws  1915,  p.  603,  art.  6,  §  2. 

(123) 


§§  220-221  JURISDICTION  (Ch.  3 

r 

tricts  courts  by  the  Constitution  and  other  statutes,  the  said  dis- 
trict courts,  concurrent  with  the  county  and  superior  courts,  shall 
have  jurisdiction  of  appeals  from  police  judges  and  from  justices 
of  the  peace  in  civil  and  criminal  cases;  but  in  all  such  appeals 
there  shall  be  a  trial  de  novo  on  questions  of  both  law  and  fact."  47 

§  220.     From  town  justice  court 

In  all  cases  before  a  justice  of  the  peace  of  any  town,  "an  appeal 
may  be  taken  by  the  defendant  to  the  county  superior  or  district 
court  of  the  county  in  which  such  town  is  situated ;  but  no  appeal 
shall  be  allowed  unless  such  defendant  shall  within  ten  days  enter 
into  recognizance  with  sufficient  securities,  to  be  approved  by  such 
justice  of  the  peace,  conditioned  for  the  payment  of  the  fine  and 
costs  and  costs  of  appeal,  and  that  he  will  render  himself  in  execu- 
tion thereof  if  it  shoulti  be  determined  against  the  appellant."  48 

§  221.    From  county  commissioners 

"From  all  decisions  of  the  board  of  commissioners,  upon  matters 
properly  before  them,  there  shall  be  allowed  an  appeal  to  the  dis- 
trict court  by  any  persons  aggrieved,  including  the  county  by  its 
county  attorney,  upon  filing  a  bond  with  sufficient  penalty,  and  one 
or  more  sureties  to  be  approved  by  the  county  clerk,  conditioned 
that  the  appellant  will  prosecute  his  or  her  appeal  without  delay, 
and  pay  all  cost  that  he  or  she  may  be  adjudged  to  pay  in  the  said 
district  court;  said  bond  shall  be  executed  to  the  county,  and 
may  be  sued  in  the  name  of  the  county  upon  breach  of  any  condi- 
tion therein :  Provided,  that  the  county  attorney,  upon  the  written 
demand  of  at  least  fifteen  (15)  freeholders  of  the  county,  shall  take 
an  appeal  from  any  action  of  the  board  of  county  commissioners 
when  said  action  relates  to  the  interests  or  affairs  of  the  county  at 
large  or  any  portion  thereof,  in  the  name  of  the  county,  when  he 
deems  it  to  the  interest  of  the  county  so  to  do ;  and  in  such  case  no 
bond  shall  be  required  or  given  and  upon  serving  the  notice  pro- 
vided for  in  the  next  section  the  county  clerk  shall  proceed  the  same 
as  if  a  bond  had  been  filed."  49 

47  Rev.  Laws  1910,  §  1778. 

48  Rev.  Laws  1910,  §  734. 

49  Sess.  Laws  1915,  p-.  205,  §  1,  amending  Rev.  Laws  1910,  |  1640. 

Where  a  petition  was  presented  to  the  board  of  county  commissioners,  re- 
questing the  laying  out  of  a  highway,  under  St.  1893,  p.  1067,  c.  72,  and  the 

(124) 


Art.  2)  ORIGINAL,  CONCURRENT,  OR  APPELLATE  §§  221—222 

On  appeal  from  county  commissioners  pursuant  to  the  statute, 
the  district  court  takes  appellate  jurisdiction  only,  and  cannot  con- 
vert the  action  into  one  in  equity,  so  as  to  enlarge  its  jurisdiction 
beyond  that  of  the  similar  tribunal.60 

"All  appeals  thus  taken  to  the  district  court  shall  be  docketed  as 
other  causes  pending  therein,  and  the  same  shall  be  heard  and  de- 
termined de  novo."  51 

§  222.    How  taken 

"Said  appeal  shall  be  taken  within  twenty  days  after  the  decision 
of  said  board,  by  serving  a  written  notice  on  one  of  the  hoard  of 
county  commissioners,  and  the  clerk  shall,  upon  the  riling  of  the 
bond  as  hereinbefore  provided,  make  out  a  complete  transcript  of 
the  proceedings  of  said  board  relating  to  the  matter  of  their  decision 


board  granted  the  petition  and  appointed  viewers,  who  established  a  line 
ancL  reported  the  proceedings  to  the  county  commissioners,  which  report  was 
approved  and  the  road  ordered  opened,  an  owner  of  land  over  which  the  road 
was  established,  without  asking  for  any  damages,  could  not  appeal  from  the 
decision  of  the  board  to  the  district  court.  Cummings  v.  Board  of  Com'rs  of 
Noble  County,  73  P.  288,  13  Okl.  21. 

An  appeal  lies,  under  St.  1893,  c.  22,  art.  9,  §  37,  from  a  decision  of  the  coun- 
ty commissioners  that  an  election  on  a  proposition  to  permit  cattle  free  mime 
is  a  resubmission  of  that  proposition  to  the  voters,  under  chapter  2,  art.  2 
(Herd  Law)  §  4.  Board  of  Com'rs  of  Washita  County  v.  Haines,  46  P.  561,  4 
Okl.  701. 

Where  c«unty  commissioners  overruled  a  protest  against  the  location  of  a 
bridge  and  proceeded  to  let  the  contract  therefor,  held,  that  such  action  was 
not  a  decision  "on  a  matter  properly  before  it"  from  which  an  appeal  would 
lie  to  the  district  court  under  Rev.  Laws  1910,  §  1640.  Parker  v.  Board  of 
Com'rs  of  Tillman  County,  139  P.  981,  41  Okl.  723. 

The  decision  of  county  commissioners  as  to  location  of  a  county  courthouse 
and  jail  is  a  "decision"  from  which  appeal  will  lie  to  district  court  pursuant 
to  Rev.  Laws  1910,  §  1640,  as  amended  by  Laws  1915,  c.  117,  In  re  Court- 
house of  Okmulgee  County,  58  Okl.  683,  161  P.  200.  In  contest  before  county 
commissioners  between  owners  of  property  offered*  as  donation  for  courthouse 
site,  on  appeal  from  action  of  the  board  under  Rev.  Laws  1910,  §  1640,  as 
amended  by  Laws  1915,  c.  117,  and  section  1641,  notice  need  not  be  served  on 
the  owners  of  the  site  selected.  Id. 

so  Parker  v.  Board  of  Com'rs  of  Tillman  County,  139  P.  981,  41  Okl.  723. 

Jurisdiction  of  district  court,  on  appeal  from  county  commissioners  in  pro- 
ceeding to  recover  taxes  erroneously  assessed,  cannot  be  enlarged  into  an 
equitable  action  to  recover  same  beyond  commissioners'  jurisdiction.  Smith 
v.  Board  of  Com'rs  of  Garvin  County,  62  Okl.  120,  162  P.  463. 

si  Rev.  Laws  1910,  §  1643. 

(125) 


.§§   222-223  JURISDICTION  (Ch.  3 

thereon,  and  shall  deliver  the  same  to  the  clerk  of  the  district 
court."  52 

An  appeal  from  the  action  of  the  county  commissioners  is  a 
statutory  method  by  which  the  district  court  may  obtain  jurisdic- 
tion of  the  cause  and  of  the  parties  and  make  judicial  determina- 
tion, and  does  not  preclude  one,  whose  claim  has  been  disallowed, 
from  beginning  an  action  by  filing  a  petition  and  causing  issuance 
and  service  of  summons.53 

"Said  appeal  shall  be  filed  by  the  first  day  of  the  district  court 
next  after  such  appeal  and. said  cause  shall  stand  for  trial  at  such 
term."  54 

§  223.     State  and  federal  courts 

A  suit  against  a  national  bank  for  penalty  for  usury  is  cogni- 
zable in  a  state  court  having  general  jurisdiction  of  suits  to  recover 
usury,  and  such  court  is  not  divested  of  jurisdiction  in  the  absence 
of  demand  for  the  return  of  the  usury  by  the  fact  that  the  state 
statute  requires  a  demand  in  actions  thereunder.55 

The  state  courts  have  jurisdiction  of  actions  against  an  initial 
carrier  for  damages  for  delay  in  the  transportation  of  a  shipment, 
though  defendant's  liability  is  created  by  the  Carmack  Amendment 
(U.  S.  Comp.  St.  §§  8604a,  8604aa),  making  the  initial  carrier  liable 
for  damages  from  delay.56 

The  enforcement  of  the  Act  of  Congress  regulating  the  liability 
of  interstate  railway  carriers  for  injury  to  employees  while-  engaged 
in  interstate  commerce  is  not  restricted  to  the  federal  courts,  in 
view  of  the  Judiciary  Act  recognizing  concurrent  jurisdiction  in  the 
state  courts.57 

A  United  States  District  Court,  having  taken  jurisdiction  of  a 
suit  to  avoid  an  allotment  and  patent,  and  having  appointed  a  re- 

52  Rev.  Laws  1910,  §  1641. 

ss  Board  of  Com'rs  of  Atoka  County  v.  Cypert  (Old.)  166  P.  195. 

s*  Rev.  Laws  1910,  §  1642. 

ss  Commercial  Nat.  Bank  of  Checotah  v.  Phillips,  61  Okl.  179,  160  P.  920. 

Actions  against  a  national  bank  for  knowingly  charging  a  usurious  rate  of 
interest  in  violation  of  Rev.  St.  U.  S.  §§  5197,  5198  (U.  S.  Comp.  St.  §§  9758, 
9759),  may  be  maintained  in  any  state  court  having  jurisdiction  in  similar 
cases  where  the  bank  is  located.  Farmers'  Nat.  Bank  of  Wewoka  v.  McCoy, 
141  P.  791,  42  Okl.  420,  Ann.  Gas.  1916D,  1243. 

56  Ft.  Smith  &  W.  R.  Co.  v.  Awbrey  &  Semple,  39  Okl.  270,  134  P.  1117. 

-•-  Missouri,  K.  &  T.  Ry.  Co.  v.  Lenahan,  39  Okl.  283,  135  P.  383. 

(126) 


Aft.  2)  ORIGINAL,  CONCURRENT,  OR  APPELLATE  §§    223~224 

ceiver  to  make  oil  and  gas  leases,  etc.,  can  retain  control  of  the 
property  until  it  fully  effectuates  its  judgment,  free  from  interfer- 
ence of  any  other  court,  and  an  intervener  in  such  suit,  therein  as- 
signing certain  oil  rights  to  prope'rty  in  receivership,  pending  the 
case  in  such  court,  cannot  litigate  his  claim  to  royalty  by  virtue  of 
an  assignment  in  a  state  court.58 

A  defendant  charged  With  violating  a  state  law  and  out  on  bail 
may  be  arrested  by  federal  authorities  without  violating  the  comity 
existing  between  the  two  jurisdictions.59 

Where  plaintiff  asserted  only  one  right  to  recover  for  death  of 
a  railroad  employe  from  defendant's  negligence,  whether  the  right 
of  action  arose  under  the  federal  act  or  under  the  state  law  it  was 
equally  cognizable  in  state  court.60 

§  224.     Transfer  of  causes 

An  order  transferring  a  will  contest  from  the  superior  to  the 
listrict  court  on  motion  of  contestants,  is  valid,61  as  is  also  a  trans- 
fer to  the  superior  court  from  the  district  court.62 

After  a  cause  has  been  legally  transferred  from  a  superior  to  a 
district  court,  jurisdiction  of  the  superior  court  is  lost,  and  any 
further  proceeding  is  a  nullity,  and  this  is  true  as  to  its  order  revok- 
ing the  order  transferring  the  cause  from  the  superior  to  the  dis- 
trict court.63  Irregularities  in  the  transfer  of  a  case  from  a  district 
court  to  a  superior  court  may  be  waived  by  the  parties,  and,  when 
so  waived,  any  judgment  rendered  by  the  superior  court  within  its 
jurisdiction  will  be  valid.64 

A  required  notice  of  desire  to  transfer  a  cause  is  waived  where 
the  opposite  party  is  present  at  the  time  the  motion  for  removal  is 

58  Black  Panther  Oil  &  Gas  Co.  v.  Swift  (Okl.)  170  P.  238. 

59  Metcalf  v.  State,  57  Okl.  64,  156  P.  305,  L.  R.  A.  1916E,  595. 
eo  Lusk  v.  Phelps  (Okl.)  175  P.  756. 

ei  In  re  Nichols'  Will,  64  Okl.  241,  166  P.  1087. 

ez  Parker  v.  Hamilton,  49  Okl.  693,  154  P.  65;  State  v.  Superior  Court  of 
Pottawatomie  County,  38  Okl.  366,  132  P.  1077. 

es  In  re  Nichols'  Will,  64  Okl.  241,  166  P.  1087. 

«'*  Price  v.  Peeples  (Okl.)  168  P.  191 ;  Parker  v.  Hamilton.  49  Okl.  693,  154 
P.  65. 

A  case  pending  on  appeal  in  the  county  court  from  a  justice  of  the  peace 
court  may  be  transferred  on  motion  of  plaintiff  to  a  superior  court.  Yarbor- 
ough  v.  Richardson.  38  Okl.  11,  131  P.  680;  Oklahoma  Fire  Ins.  Co.  v.  Phil* 
lip,  111  P.  334,  27  Okl.  234. 

(127) 


§§  225-226  JURISDICTION  (Ch.  3 

made  and  participates  in  the  hearing  without  objection  based  on 
want  of  notice.65 

§  225.    Transfer  to  state  courts 

Courts  of  original  jurisdiction,  after  statehood,  are  deemed  suc- 
cessors of  all  courts  of  original  jurisdiction  in  the  territories,  and 
take  custody  of  all  records  and  files  of  such  territorial  courts.86 

The  district  court  of  the  state  is  the  successor  to  the  territorial 
district  court  for  the  purpose  of  correcting  the  record  of  a  judg- 
ment rendered  by  the  territorial  court.67 

The  right  to  have  a  case  transferred  to  the  federal  court  is  waived 
by  failure  to  object  to  its  transfer  to  the  Oklahoma  Supreme 
Court.68 

§  226.     County  courts — Jurisdiction — Judge  pro  tempore 

"The  county  court,  coextensive  with  the  county,  shall  have 
original  jurisdiction  in  all  probate  matters,  and  until  otherwise  pro- 
vided by  law,  shall  have  concurrent  jurisdiction  with  the  district 
court  in  civil  cases  in  any  amount  not  exceeding  one  thousand  dol- 
lars, exclusive  of  interest :  Provided,  that  the  county  court  shall  not 
have  jurisdiction  in  any  action  for  malicious  prosecution,  or  in  any 
action  for  divorce  or  alimony,  or  in  any  action  against  officers  for 
misconduct  in  office,  or  in  actions  for  slander  or  libel,  or  in  actions 
for  the  specific  performance  of  contracts  for  the  sale  of  real  estate, 
or  in  any  matter  wherein  the  title  or  boundaries  of  land  may  be 
in  dispute  or  called  in  question;  nor  to  order  or  decree  the  partition 
or  sale  of  real  estate,  not  arising  under  its  probate  jurisdiction. 

es  Rauh  v.  Morris,  137  P.  1174,  40  Okl.  288. 

ee  Where  a  proceeding  to  probate  a  will,  instituted  in  the  United  States 
Court  at  Wewoka,  was  transferred  after  statehood  to  the  district  court  of 
Seminole  county,  pursuant  to  Const.  Schedule,  §  27,  and  transferred,  pur- 
suant to  section  23,  to  the  county  coiirt  of  that  county,  which  transferred  it 
to  the  county  court  of  Hughes  county,  wherein  it  was  pending  when  a  peti- 
tion to  set  aside  a  probate  of  the  will  was  filed,  held,  that  it  was  proper  to 
file  the  petition  in  the  court  last  mentioned.  Scott  v.  McGirth,  139  P.  519, 
41  Okl.  520;  Eaves  v.  Mullen,  107  P.  433,  25  Okl.  679;  Burdett  v.  Burdett,  109 
P.  922,  26  Okl.  416,  35  L.  R.  A.  (N.  S.)  964 ;  MaHarry  v.  Eatman,  116  P.  935, 
29  Okl.  46 ;  Harris  v.  Lynch,  116  P.  942,  29  Okl.  349 ;  Reeves  v.  Territory,  101 
P.  1039,  2  Okl.  Cr.  351 ;  Crump  v.  Pitchford,  104  P.  911,  24  Okl.  808 ;  South- 
ern Surety  Co.  v.  State,  127  P.  409,  34  Okl.  781. 

67  Ex  parte  Rowland,  104  P.  927,  3  Okl.  Cr.  142,  Ann.  Gas.  1912A,  840. 

68  Cnoctaw,  O.  &  G.  R.  Co.  v.  Sittel,  97  P.  362,  21  Okl.  679. 

(128) 


Art.  2)  ORIGINAL,  CONCURRENT,  OR  APPELLATE  §    226 

"It  shall  have  such  appellate  jurisdiction  of  the  judgments  of 
justices  of  the  peace  in  civil  and  criminaj  cases  as  may  be  provided 
by  law,  or  in  this  Constitution,  The  county  court  shall  have  jur- 
isdiction concurrent  with  justices  of  the  peace  in  misdemeanor  cases, 
and  exclusive  jurisdiction  in  all  misdemeanor  cases  of  which  jus- 
tices of  the  peace  have  not  jurisdiction.  In  the  absence  of  the 
judge  of  the  district  court  from  the  county,  or  in  case  of  his  dis- 
qualification for  any  reason,  the  county  court,  or  judge  thereof, 
shall  have  power  to  issue  writs  of  injunction  in  matters  about  to  be 
brought  or  pending  in  the  district  court;  and  to  issue  writs  of 
injunction,  mandamus,  and  all  writs  necessary  to  enforce  the  juris- 
diction of  the  county  courts;  and  issue  writs  of  habeas  corpus 
in  cases  where  the  offense  charged  is  within  the  jurisdiction  of 
the  county  court  or  any  other  court  or  tribunal  inferior  to  said 
court." 

"When  the  county  judge  is  disqualified  in  any  case  pending  in  the 
county  court,  a  judge  pro  tempore  may  be  selected  in  the  manner 
provided  for  the  selection  of  judges  pro  tempore  in  the  District 
Court."  69 

"County  courts,  in  their  respective  counties,  in  addition  to  such 
jurisdiction  and  powers  as  are  conferred  by  the  state  Constitution." 
coextensive  with  the  county,  shall  have  original  jurisdiction  in  all 
probate  matters  and  bastardy  proceedings,  and  shall  have  concur- 
rent jurisdiction  with  the  district  court  in  civil  cases  in  any  amount 
not  exceeding  one  thousand  ($1,000.00)  dollars,  exclusive  of  inter- 
est: Provided,  that  the  county  court  shall  not  have  jurisdiction  in 
any  action  for  malicious  prosecution,  or  in  any  action  for  divorce 
or  alimony,  or  in  any  action  against  officers  for  misconduct  in 
office,  or  in  actions  for  slander  or  libel,  or  in  actions  for  the  specific 
performance  of  contracts  for  the  sale  of  real  estate,  or  in  any  mat- 
ter wherein  the  title  or  boundaries  of  land  may  be  in  dispute  or  call- 
ed in  question;  nor  to  order  or  decree  the  partition  or  sale  of 
real  estate,  or  in  any  matter  wherein  the  title  or  boundaries  of  land 
may  ,be  in  dispute  or  called  in  question ;  nor  to  order  or  decree 
the  partition  or  sale  of  real  estate,  not  arising  under  its  probate  jur- 
isdiction ;  and,  provided,  further,  that  in  any  civil  action  in  the  coun- 
ty court  where  the  title  or  boundaries  of  land  may  be  called  in  ques- 

69  Const.  Okl.  art.  7,  §  12. 

HON.PL.&  PRAC.— 9  (129) 


§§  226-227  JURISDICTION  (Ch.  3 

tion,  said  action  shall  be  transferred  to  the  district  court  in  the  same 
manner  and  upon  the  sam^  grounds,  and  be  proceeded  with  therein, 
as  provided  for  similar  actions  before  justices  of  the  peace."  70 

The  county  court  has  exclusive  jurisdiction  of  proceedings  to  sus- 
pend an  officer  in  a  prosecution  for  a  misdemeanor.71 

County  courts  have  only  such  jurisdiction  as  is  granted  by  the 
Constitution  and  statutes  enacted  in  harmony  therewith,72  but 
the  inclusion  of  a  prayer  for  additional  relief  beyond  the  county 
court's  jurisdiction  will  not  deprive  such  court  of  jurisdiction  or 
prevent  it  from  granting  such  relief  within  its  jurisdiction  as  would 
be  consistent  with  the  pleadings  and  evidence.73 

§  227.    Amount  involved 

Under  the  act  of  1917,  county  courts  have  jurisdiction  of  civil 
cases  involving  $200  or  less,74  and  decisions  that  the  county  court 
had  no  such  jurisdiction  are  now  inapplicable.75 


70  Sess.  Laws  1917,  p.  184,  §  1,  amending  Rev.  Laws  1910,  §  1816. 

71  State  ex  rel.  Ikard  v.  Russell,  33  Okl.  141,  124  P.  1092. 

Wilson's  Rev.  &  Ann.  St.  1903,  §  2630,  conferring  on  district  courts  jurisdic- 
tion of  actions  under  section  2628,  and  that  portion  of  section  2631  confer- 
ring on  district  courts  in  actions  under  section  2628  authority  to  suspend  from 
office  certain  officers  pending  such  action,  was  not  continued  in  force  on  the 
admission  of  the  state  in  so  far  as  they  are  repugnant  to  Const,  art.  7,  §  12, 
conferring  jurisdiction  on  the  county  court.  State  v.  Shea,  115  P.  862,  28 
Okl.  821. 

72  Ozark  Oil  Co.  v.  Berryhill,  43  Okl.  523,  143  P.  173;  Const,  art.  7,  §  12; 
Crump  v.  Pitchford,  24  Okl.  808,  104  P.  911 ;   In  re  Johnson  (Okl.)  179  P.  605. 

Statutes  in  harmony. — Const,  art.  7,  §  14  (Bunn's  Ed.  §  186),  providing  that 
the  county  court  shall  have  jurisdiction  of  all  cases  on  appeals  from  justices 
of  the  peace,  does  not  preclude  the  conferring  of  appellate  jurisdiction  on  the 
county  court  in  a  proceeding  for  the  assessment  and  collection  of  taxes  on 
omitted  property.  Anderson  v.  Ritterbusch,  98  P.  1002,  22  Okl.  761. 

73  Antene  v.  Jensen,  47  Okl.  352,  148  P.  727. 
7*Moline  Plow  Co.  v.  Adair,  76  Okl.  4,  183  Pac.  499. 

All  cases  heretofore  filed  in  the  county  courts  for  amounts  of  less  than  two 
hundred  (.$200.00)  dollars,  shall  be  deemed  to  have  been  validly  filed  on  the 
day  the  petition  and  praecipe  for  summons  were  filed  and  the  action  shall  be 
deemed  to  have  been  legally  commenced  on  said  day,  and  all  proceedings  had 
in  the  county  courts  in  cases  brought  for  less  than  two  hundred  ($200.00)  dol- 

75  Inapplicable  decisions. — Musser  v.  Baker,  53  Okl.  782,  158  P.  442;  Barry 
v.  Easter  Drug  Co.,  53  Okl.  799,  158  P.  443 ;  First  National  Bank  of  Poteau  v. 
School  District  No.  49  of  Hughes  County,  61  Okl.  45,  160  P.  68 ;  Underwood 
Typewriter  Co.  v.  March,  61  Okl.  129,  160  P.  594;  Ashbaugh  v.  Rousch,  62  Okl. 
96,  162  P.  205. 

(130) 


Art.  2)  ORIGINAL,  CONCURRENT,  OR  APPELLATE  §§    227~228 

Where  th§  amount  claimed  exceeds  the  maximum  statutory  ju- 
risdictional  limit  of  the  court,  it  is  without  power  to  proceed  with 
a  hearing.76 

The  prayer  of  the  pleading  determines  the  jurisdiction  of  the 
court  and  fixes  the  amount  of  controversy.77 

Interest  should  be  excluded  in  determining  the  jurisdictional 
amount  involved.78 

§  228.     Probate  jurisdiction — Sessions 

"The  county  court  shall  have  the  general  jurisdiction  of  a  pro- 
bate court.  It  shall  probate  wills,  appoint  guardians  of  minors, 
idiots,  lunatics,  persons  non  compos  mentis,  and  common  drunk- 
ards ;  grant  letters  testamentary  and  of  administration,  settle 
accounts  of  executors,  administrators,  and  guardians;  transact 
all  business  appertaining  to  the  estates  of  deceased  persons,  mi- 
nors, idiots,  lunatics,  persons  non  compos  mentis,  and  common 
drunkards,  including  the  sale,  settlement,  partition,  and  distribu- 
tion of  the  estates  thereof.  The  county  court  shall  be  held  at  the 
county  seat,  but  the  Legislature  may  provide  for  holding  sessions 
of  the  county  court  at  not  more  than  two  additional  places  in  the 
county :  Provided,  that  alternate  sessions  of  county  court  in  Le 
Flore  county  shall  be  held  at  Talihina."  79 

lars,  shall  be  deemed  legal  and  valid  and  any  such  case  which  has  been  dis- 
missed on  the  ground  of  want  of  jurisdiction  may  be  reinstated  on  motion,  a 
copy  of  which  motion  shall  be  served  by  the  applying  party  upon  the  oppo- 
site party  or  his  attorney  of  record  the  same  as  before  the  adoption  of  the 
Revised  Laws  of  1910.  Sess.  Laws  1917,  p.  184,  §  2. 

The  original  jurisdiction  of  county  courts  in  civil  cases  conferred  by  Const. 
art.  7,  §  12,  was  not  changed  by  Comp.  Laws  1909,  §§  1977,  1978,  so  as  to  de- 
prive them  of  jurisdiction  where  the  amount  involved  does  not  exceed  $200. 
Miller  v.  Mills,  122  P.  671,  32  Old.  388 ;  First  Nat.  Bank  v.  Langston,  124  P. 
308,  32  Okl.  795 ;  State  Bank  of  Paden  v.  Lanam,  126  P.  220,  34  Okl.  485 ;  First 
Nat.  Bank  v.  Latham,  132  P.  891,  37  Okl.  286 ;  First  Nat.  Bank  v.  Ingle,  132 
P.  895,  37  Okl.  276 ;  Cooper  v.  Austin,  30  Okl.  297,  119  P.  206. 

76  St.  Louis  &  S.  F.  By.  Co.  v.  Egbert,  111  P.  202,  27  Okl.  168. 

T  T  Oliver  v.  White  (Okl.)  176  P.  946. 

78  St.  Louis  &  S.  F.  R.  Co.  v.  Wynn,  54  Okl.  482,  153  P.  1156. 

Under  Const,  art.  7,  §  12,  giving  county  court  concurrent  jurisdiction  with 
district  court  in  civil  cases,  and  in  view  of  Rev.  Laws  1910,  §  2848,  where 
amount  does  not  exceed  $1,000,  exclusive  of  interest,  interest  on  damages 
from  negligent  delay  in  shipment  of  live  stock  by  shrinkage  and  declining 
market  should  be  excluded,  in  determining  maximum  jurisdictional  amount 

7  9  Const.  Okl.  art.  7,  §  13. 

(131) 


§  228  JURISDICTION  (Ch.  3 

The  county  court  of  the  state,  as  to  all  causes,  jurisdiction  of 
which  is  conferred  upon  it  by  the  Constitution,  and  which  there- 
tofore had  been  in  the  probate  court  of  the  territory,  is  a  successor 
of  such  probate  court,  and  the  statute  subscribing  the  procedure 
in  the  trial  and  disposition  of  cases  in  the  probate  court  governs  in 
the  county  court  so  far  as  not  in  conflict  with  the  Constitution  or 
inapplicable.80 

A  county  court,  coextensive  with  the  county,  is  a  court  of  origi- 
nal jurisdiction  in  all  probate  matters,81  and  may  at  any  time  be- 
fore his  majority  modify  or  vacate  any  order  or  judgment  regard- 
ing the  estate  of  a  minor.82 

An  action  in  the  county  court  to  vacate  an  order  made  in  the 
exercise  of  the  court's  probate  jurisdiction,  distributing  an  estate, 
is  an  action  under  that  court's  probate  jurisdiction,83  as  is  a  peti- 
tion for  withdrawal  of  a  successful  bid  at  a  sale  under  order  of  the 
county  court,  by  a  guardian  of  oil  royalties,  for  fraud  of  the  guard- 
ian in  stating  the  quantity  of  royalty  and  for  a  refund  of  a  depos- 
it.84 But  county  courts  have  no  jurisdiction  where  an  oil  and  gas 
lease  has  been  approved  and  a  bonus  of  $1,600  paid  to  the  guardian, 
to  order  him  to  repay  said  sum,  on  the  ground  that  the  approval 


for  which  action  may  be  brought  in  county  court.  St.  Louis  &  S.  F.  R.  Co.  v. 
Ladd  (Okl.)  178  P.  125. 

so  Baker  v.  Newton,  112  P.  1034,  27  Okl.  436.  The  enabling  act  (Act  June 
16,  1906,  c.  3335,  34  Stat.  277)  and  the  schedule  to  the  Constitution  give  to  the 
county  Court  jurisdiction  of  cases  which  had  theretofore  been  in  the  probate 
court  of  the  territory,  and  put  in  force  in  the  state  the  statutes  in  force  in  the 
territory  prescribing  procedure  applicable  to  cases  in  the  probate  court.  Held, 
that  Wilson's  Rev.  &  Ann.  St.  1903,  §  1880,  providing  that  the  probate  court 
shall  be  open  at  all  times  for  the  trial  of  cases  under  the  justice  procedure, 
being  inapplicable  to  the  trial  of  civil  cases  in  the  county  courts  of  the  state, 
is  to  that  extent  not  extended  in  force  in  the  state  upon  its  admission.  Id- 

si  Scott  v.  McGirth,  139  P.  519,  41  Okl.  520. 

The  trial  of  the  question  of  whether  one  petitioning  for  revocation  of  pro- 
bate of  a  will  is  interested,  and  so  entitled,  under  Code  Civ.  Proc.  §  1327,  to 
contest  the  will,  or  whether  he  lost  all  by  a  conveyance  of  his  expectant  es- 
tate, is  within  the  jurisdiction  of  the  probate  court.  In  re  Wickersham's  Es- 
tate, 96  P.  311,  153  Cal.  603. 

szBarnett  v.  Blackstone  Coal  &  Mining  Co.,  60  Okl.  41,  158  P.  588;  In  re 
Johnson  (Okl.)  179  P.  605. 

ss  Southwestern  Surety  Ins.  Co.  v.  King  (Okl.)  174  P.  264. 

s*  In  re  Southern  Oil  Corp..  (Okl.)  168  P.  826. 

(132) 


Art.  2)  ORIGINAL,  CONCURRENT,  OR  APPELLATE  §§    228~229 

of  the  lease  was  secured  by  fraudulent  representations  as  to  breach 
of  conditions  of  a  former  lease  by  the  lessee  therein.85 

A  county  court's  attempted  decree,  partitioning  restricted  In- 
dian lands,  is  void.86 

§  229.    Title  involved 

The  county  court  has  no  jurisdiction,  where  the  title  to  land  is 
involved.87 


ss  In  re  Johnson  (Okl.)  179  P.  605. 

A  proceeding  in  which  a  minor  seeks  a  modification  and  cancellation  of  an 
oil  lease  made  by  order  of  court  is  not  a  probate  proceeding.  Ozark  Oil  Co. 
v.  Berryhill,  143  P.  173,  43  Okl.  523. 

se  Lewis  v.  Gillard  (Okl.)  173  P.  1136. 

ST  Title  involved. — Issues  in  a  real  estate  broker's  action  for  commission 
held  not  to  involve  title  to  the  land  so  as  to  deprive  the  county  court  of  ju- 
risdiction. Everett  v.  Combs,  140  P.  152,  40  Okl.  645. 

A  petition  in  the  county  court  alleging  that  defendants  falsely  represented 
to  plaintiff  that  they  had  the  right  of  possession  of  land  for  the  succeeding 
year  and  induced  plaintiff  to  lease  the  land  from  them  and  to  pay  a  valuable 
consideration  therefor,  and  that  the  title  to  said  land  was  not  in  defendants 
or  in  the  person  under  whom  defendants  claimed,  and  that  defendants  had 
no  valid  lease  therefor,  brought  the  title  to  land  into  question  so  that  the 
county  court,  under  Const,  art.  7,  §  12,  had  no  jurisdiction.  Couch  v.  Mc- 
Koon,  122  P.  542,  31  Okl.  584. 

The  county  court  by  reason  of  Const,  art.  7,  §  12,  providing  that  the  county 
court  cannot  have  jurisdiction  in  any  matter  wherein  the  title  to  land  may 
be  in  dispute,  has  no  jurisdiction  in  a  probate  proceeding  by  a  guardian  for 
an  order  of  sale  of  his  ward's  real  estate  to  determine  a  claim  of  a  third  per- 
son to  the  real  estate  adverse  to  the  ward.  Jefferson  v.  Winkler,  110  P.  755, 
26  Okl.  653. 

Title  not  involved. — Title  to  land  is  not  in  dispute  in  an  action  on  a  gran- 
tor's covenant  against  taxes,  and  a  probate  court  of  the  territory  of  Okla- 
homa or  a  county  court  of  the  state  has  jurisdiction.  Loeb  v.  Loeb,  103  P. 
570,  24  Okl.  384. 

A  motion  to  dismiss  an  action  of  forcible  entry  and  detainer  because  the 
title  to  real  estate  was  involved  was  improperly  sustained ;  this  being  a  pos- 
sessory action  in  which  title  cannot  be  involved  except  incidentally.  Cahill  v. 
Pine  Creek  Oil  Co.,  38  Okl.  568,  134  P.  64. 

In  an  action  in  the  county  court  on  a  note,  an  answer,  alleging  that  the 
note  is  for  the  balance  of  the  price  of  real  estate,  title  to  which  was  defec- 
tive, did  not  present  a  question  as  to  the  title  to  real  estate  ousting  the  ju- 
risdiction. Taylor  v.  Cox,  136  P.  576,  39  Okl.  582.  A  mere  statement  of  a 
conclusion  in  a  pleading  that  the  title  to  real  estate  was  involved  was  insuffi- 
cient to  oust  the  jurisdiction  of  the  county  court.  Id. 

Under  Const,  art.  7,  §  12,  depriving  the  county  court  of  jurisdiction  where 
title  is  involved,  etc.,  the  county  court  has  jurisdiction  in  a  suit  to  recover 

(133) 


§§  229-231  JURISDICTION  (Ch.  3 

The  district  courts,  and  not  the  county  courts,  have  jurisdic- 
tion of  actions  in  ejectment  and  to  remove  cloud  from  title,  since 
they  call  into  question  title  to  real  estate.88 

In  an  action  by  the  grantee  of  a  landlord  for  rent,  where  the 
tenant's  answer  denies  the  title  of  the  plaintiff,  but  no  evidence  is 
introduced  to  show  want  of  title,  the  county  court  is  not  ousted 
of  jurisdiction; 89  but  it  is  otherwise  where  the  real  issue  is  as  to 
who  owns  the  land  and  is  entitled  to  the  rent.90 

§  230.    Bastardy  proceedings 

The  county  court  is  vested  with  the  exclusive  original  juris- 
diction in  bastardy  proceedings,91  regardless  of  the  amount  in- 
volved.92 

§  231.    Appellate  jurisdiction 

"Until  otherwise  provided  by  law,  the  county  court  shall  have 
jurisdiction  of  all  cases  on  appeals  from  judgments  of  the  justices 
of  the  peace  in  civil  and  criminarcases ;  and  in  all  cases,  civil  and 
criminal,  appealed  from  justices  of  the  peace  to  such  county  court, 
there  shall  be  a  trial  de  novo  on  questions  of  both  law  and  fact."  93 

"The  county  court  shall  have,  concurrent  with  the  district  court, 
appellate  jurisdiction  of  judgments  of  justices  of  the  peace,  and 
of  judgments  of  police  judges,  in  all  civil  and  criminal  causes 
*  *  *  and  in  all  cases,  civil  and  criminal,  appealed  from  the 
justices  of  the  peace  and  police  judges,  there  shall  be  a  trial  de 
novo  on  questions  of  both  law  and  fact."  °4 

an  alleged  balance  of  the  price  of  a  town  lot  though  defendant  denies  he  ever 
bought  the  lot  or  owes  anything.    Waters  v.  Dore,  50  Okl.  183,  150  P.  885. 

In  actions  founded  on  fraud  and  deceit  the  probate  court  has  jurisdiction 
where  the  amount  sought  to  be  recovered  is  $1,000  or  less,  though  the  fraud 
induced  the  plaintiffs  to  purchase  certain  land,  the  action  not  being  concern- 
ing any  matter  wherein  the  title  or  boundaries  of  land  were  in  "dispute,  or  on 
a  contract  for  the  sale  of  real  estate,  of  which  action  the  probate  court  has 
no  jurisdiction,  under  St.  1893,  §  1562.  Newell  v.  Long-Bell  Lumber  Co.,  78 
P.  104,  14  Okl.  185. 

88  Austin  v.  Chambers,  124  P.  310,  33  Okl.  40. 

89  Sevy  v.  Stewart,  122  P.  544,  31  Okl.  589. 

90  Marshall  v.  Burden,  106  P.  846,  25  Okl.  554. 

91  Cummins  v.  State,  46  Okl.  51,  148  P.  137. 

92  Wilson  v.  State  (Okl.)  175  P.  829,  overruling  Cummins  v.  State,  46  Okl. 
51,  148  P.  137. 

os  Const.  Okl.  art.  7,  §  14. 
9*  Rev.  Laws  1910,  §  1817. 

(134) 


Aft.  2)  ORIGINAL,  CONCURRENT,  OR  APPELLATE  §§    232~233 

§  232.     District  courts 

"The  district  courts  shall  have  original  jurisdiction  in  all  cases, 
civil  and  criminal,  except  where  exclusive  jurisdiction  is  by  this 
Constitution,  or  by  law,  conferred  on  some  other  court,  and  such 
appellate  jurisdiction  as  may  be  provided  in  this  Constitution,  or 
by  law.  The  district  courts,  or  any  judge  thereof,  shall  have  pow- 
er to  issue  writs  of  habeas  corpus,  mandamus,  injunction,  quo  war- 
ranto,  certiorari,  prohibition,  and  other  writs,  remedial  or  other- 
wise, necessary  or  proper  to  carry  into  effect  their  orders,  judg- 
ments, or  decrees.  The  district  courts  shall  also  have  the  power 
of  naturalization  in  accordance  with  the  laws  of  the  United 
States."95 

This  constitutional  provision  does  not  prevent  the  Legislature 
from  conferring  jurisdiction  on  county  and  superior  courts,  to  the 
exclusion  of  the  district  court.96 

§  233.    Special  cases 

Under  specified  circumstances  the  district  court  may  change  the 
limits  of  a  town  or  city,97  and  may  alter  or  vacate  the  whole  or 
part  of  a  town.98  It  has  jurisdiction  of  actions  by  a  ward  against 
the  estate  of  his  former  guardian  and  the  surety  on  the  guardian's 
bond,  although  the  guardian  had  not  accounted  to  the  county  court 
prior  to  his  death.99  It  also  has  equitable  jurisdiction  in  an  action 
to  set  aside  orders  of  the  county  court  approving  a  guardian's  final 
settlement,  where  such  settlement  and  orders  were  procured  by 
undue  influence  on  wards  and  fraudulent  representations  to  the 
court.1 

95  Const  Okl.  art.  7,  §  10. 

Where  a  donor  offered  $10,000  to  construct  a  library  provided  the  city 
would  donate  the  site  and  maintain  the  library  which  proposition  the  city  ac- 
cepted, the  city's  title  to  the  property  was  that  of  trustee  for  the  public,  and 
the  court  had  jurisdiction  in  a  taxpayer's  action  to  prevent  the  city's  officers 
from  using  the  building  for  city  offices.  Perry  Public  Library  Ass'n  v.  Lob- 
sitz,  130  P.  919,  35  Okl.  576,  45  L.  R.  A.  (N.  S.)  368. 

96  Poos  v.  Shawnee  Fire  Ins.  Co.,  37  Okl.  251,  130  P.  153. 

97  Rev.  Laws  1910,  §  504. 

98  Rev.  Laws  1910,  §  518. 

99  Morey  v.  Christian  (Okl.)  169  P.  887. 

In  action  in  district  court  by  ward  against  personal  representative  of  guard- 
ian's sureties,  the  court  had  jurisdiction  to  adjust  account  of  deceased  guard- 

i  Francis  v.  Sperry,  176  P.  732. 

(135) 


§  233  JURISDICTION  (Ch.  3 

"Any  person  who  has  been  aggrieved  by  any  act,  rule  or  regu- 
lation of  any  of  said  boards  of  health,  shall  have  his  right  of  action 
to  have  such  issue  tried  in  the  district  court  of  the  county  in 
which  some  member  of  the  board  shall  reside/'  2 

Upon  the  filing  of  the  report  of  each  survey  made  by  the  county 
surveyor  for  the  establishment  of  the  corners  and  boundaries  of 
lands,  "any  person  served  with  the  notice  of  the  survey  as  herein 
provided,  and  being  aggrieved  by  such  survey,  or  the  costs  there- 
of, may  at  any  time  within  thirty  days  after  the  filing  of  such  re- 
port, appeal  to  the  district  court  of  the  county  by  filing  with  the 
county  surveyor  a  notice  of  his  intention  to  appeal,  in  which  no- 
tice he  shall  state  in  what  particulars  the  survey  as  shown  by  such 
report  is  erroneous  or  fails  to  do  him  justice,  or,  if  he  appeals 
from  the  apportionment  of  costs  alone,  then  in  what  particulars 
the  costs  stated  in  the  cost  bill  are  unauthorized  or  excessive,  and 
by  giving  a  bond  with  two  sureties  to  be  approved  by  and  filed 
with  the  clerk  of  the  district  court,  running  to  the  said  clerk  and 
conditioned  for  the  payment  of  the  costs  of  the  appeal  if  the  re- 
port of  the  county  surveyor  shall  be  affirmed-  by  the  court.  Upon 
the  filing  of  such  notice  and  bond,  the  county  surveyor  shall  cer- 
tify such  appeal  to  the  clerk  of  the  district  court,  by  filing  with 
such  clerk  a  certified  copy  of  the  report  if  the  survey  be  appealed 
from,  and  the  original  notice  of  the  appeal,  but  if  the  appeal  be 
from  his  apportionment  and  assessment  of  costs,  then  by  filing 
with  such  clerk  a  certified  copy  of  his  cost  bill  and  the  original  no- 
tice of  appeal."  3 

"The  court  shall  hear  and  determine  said  appeal  and  enter  an 
order  or  judgment  approving  or  rejecting  said  report,  or  modifying 
or  amending  the  same,  or  may  refer  the  same  back  to  the  survey- 
or to  correct  his  survey  and  report  in  conformity  with  the  decree 
of  the  court,  or  may,  for  good  cause  shown,  set  aside  the  report 
and  appoint  one  or  more  surveyors  who  shall  proceed,  at  the  time 
mentioned  in  the  order  of  the  court,  to  survey  and  determine  the 
corners  and  boundaries  of  the  land  in  question,  and  shall  report 
the  same  to  the  court  for  further  action."  4 

ian  and  allow  and  determine  balance  due  by  guardian  and  render  judgment 
therefor.    Asher  v.  Stull,  61  Okl.  320,  161  P.  808. 

2  Rev.  Laws  1910,  §  6819.  *  Rev.  Laws  1910,  §  1722. 

*  Rev.  Laws  1910,  §  1721. 

(136) 


Art.  2)  ORIGINAL,  CONCURRENT,  OR  APPELLATE  §§    234-236 

§  234.    Amount  involved 

The  jurisdiction  depends  on  the  allegations  of  the  petition  and 
not  the  amount  of  the  outstanding  indebtedness  as  finally  decided.5 
Interest  forms  no  part  of  the  amount  in  controversy  as  affecting 
jurisdiction,  when  the  statute  defining  the  court's  jurisdiction  ex- 
cludes it  from  computation,  and  a  claim  for  attorney's  fee,  not  pro- 
vided for  in  the  contract  and  not  recoverable  under  the  statutes, 
cannot  be  added  to  the  amount  in  controversy,  so  as  to  give  the 
district  court  jurisdiction.8 

§  235.     Appeals  from  county  court 

"Until  otherwise  provided  by  law,  in  all  cases  arising  under  the 
probate  jurisdiction  of  the  county  court,  appeals  may  be  taken 
from  the  judgments  of  the  county  court  to  the  district  court  of 
the  county  in  the  same  manner  as  is  now  provided  by  the  laws  of 
the  territory  of  Oklahoma  for  appeals  from  the  probate  court  to 
the  district  court,  and  in  all  cases  appealed  from  the  county  court 
to  the  district  court,  the  cause  shall  be  tried  de  novo  in  the  district 
court  upon  questions  of  both  law  and  fact."  7 

§  236.    Appeals  in  probate  cases 

"In  all  cases  arising  under  the  probate  jurisdiction  of  the  coun- 
ty court,  appeals  may  be  taken  from  the  judgments  of  the  coun- 
ty courts  to  the  district  court  of  the  county,  in  the  manner  pro- 
vided by  law,  and  in  all  cases  appealed  from  county  court  to  the 
district  court,  the  cause  shall  be  tried  de  novo  in  the  district  court 
upon  questions  of  both  law  and  fact."  8 

/ 

e  Farmers'  &  Merchants'  Nat.  Bank  of  Hobart  V.  School  Dist.  No.  56,  105 
P.  641,  25  Okl.  284. 

e  St.  Paul  Fire  &  Marine  Ins.  Co.  v.  Peck,  130  P.  805,  37  Okl.  85 ;  Humphrey 
v.  Coquillard  Wagon  Works,  132  P.  899,  37  Okl.  714,  49  L.  R.  A.  (N.  S.)  600. 

7  Const.  Okl.  art.  7,  §  16. 

s  Rev.  Laws  1910,  §  1820. 

All  appeals  from  the  probate  court,  when  exercising  its  jurisdiction  in  pro- 
bate matters,  must  be  to  the  district  court,  under  St.  1893,  c.  18,  art.  13,  §  14, 
whether  the  appeal  is  on  questions  of  law  or  fact.  Carpenter  v.  Russell,  73 
P.  930,  13  Okl.  277. 

When  appeal  lies. — In  action  in  county  court  under  Rev.  Laws  1910,  §§  5267, 
5269,  to  vacate  an  order  made  in  the  exercise  of  its  probate  jurisdiction  in 
distributing  an  estate,  an  appeal  lies  to  the  district  court  under  Const,  art.  7, 
§  16.  Southwestern  Surety  Ins.  Co.  v.  King  (Okl.)  174  P.  264. 

From  action  of  a  county  court  in  a  probate  matter,  on  a  petition  to  with- 

(137) 


§  236  JURISDICTION  (Ch.  3 

Such  appeals  must  be  taken  in  strict  compliance  with  the  stat- 
ute.9 They  cannot  be  taken  direct  to  the  Supreme  Court.10 

Where  notice  is  given  and  bond  executed  and  approved  for  an 
appeal  in  a  probate  matter,  the  district  court  cannot  dismiss  the 
appeal  until  the  transcript  has  been  transmitted  to  the  district 
court  for  filing.11  In  probate  matters,  where  an  appeal  is  taken 
from  the  county  court  to  the  district  court,  on  questions  of  fact, 
or  on  questions  of  both  law  and  fact,  the  trial  in  the  district  court 
must  be  de  novo,  and  be  conducted  as  if  the  case,had  lawfully  orig- 
inated in  that  court.  The  district  court,  in  such  cases,  has  gen- 
eral power  to  decide  the  questions  of  fact  which  the  county  court 
had,  and  in  its  discretion  may  order  a  jury  trial  of  any  or  all  mate- 


draw  a  successful  bid  made  at  the  sale  under  its  order  for  an  oil  royalty,  and 
to  recover  a  deposit,  an  appeal  lies  to  district  court.  In  re  Southern  Oil  Corp. 
(Old.)  168  P.  826. 

Under  Rev.  Laws  1910,  §  1820,  and  Laws  1907-08,  c.  27r  art.  1,  §  6,  an  ap- 
peal lies  to  the  district  court  from  the  county  court  in  probate  matters.  In  re 
Theimer,  137  P.  358,  40  Okl.  235 ;  Smith  v.  J.  I.  Case  Threshing  Mach.  Co.,  142 
P.  1032,  43  Okl.  346. 

In  an  action  in  the  county  court  under  Rev.  Laws  1910,  §§  5267,  5269,  to  va- 
cate an  order  in  a  probate  matter,  held  that  an  appeal  lies  to  the  district 
court  under  Const,  art.  7,  §  16.  Gray  v.  McKnight,  50  Okl.  73,  150  P.  1046. 
The  term  "civil  cases,"  as  used  in  section  15,  art.  7,  of  the  Constitution, 
*  *  *  does  not  include  any  case  arising  under  the  probate  jurisdiction  of 
the  county  court.  Id. 

Under  Const,  art.  7,  §  16,  and  Schedule,  §  2,  appeal  held  to  lie  to  district 
court  from  county  court  in  probate  matters  in  cases  in  which  appeal  was  al- 
lowed by  Wilson's  Rev.  &  Ann.  St.  1903,  §  1793  (Snyder's  Comp.  Laws  1909,  § 
5451).  Apache  State  Bank  v.  Daniels,  121  P.  237,  32  Okl.  121,  40  L.  R.  A.  (N. 
S.)  901,  Ann.  Gas.  1914A,  520. 

»  The  right  of  an  appeal  from  the  county  court  to  district  court  in  a  pro- 
bate proceeding,  being  merely  statutory,  must  be  exercised  in  strict  compli- 
ance with  Rev.  Laws  1910,  §§  6504,  6505,  governing  such  right  of  appeal. 
Adair  v.  Montgomery  (Okl.)  176  P.  911. 

Under  Rev.  Laws  1910,  §  6503,  an  affidavit  by  an  applicant  for  appeal  from 
the  county  court's  order  held  a  prerequisite  to  the  granting  of  an  appeal,  and 
to  conferring  jurisdiction  thereof  on  the  district  court.  Baker  v.  Cureton,  49 
Okl.  15,  150  P.  1090. 

10  An  appeal  from  a  judgment,  decree,  or  order  of  the  county  court  in  pro- 
bate cases  will  not  lie  direct  from  such  court  to  the  Supreme  Court.     Lucas 
v.  Lucas,  125  P.  481,  34  Okl.  282.    Under  Const,  art.  7,  §  16,  and  Schedule,  §  2. 
an  appeal  lies  to  the  district  court  in  probate  matters  in  those  cases  in  which 
an  appeal  was  allowed  by  Wilson's  Rev.  &  Ann.  St.  1903,  §  1793  (Comp.  Laws 
1909,  §  5451).     Id. 

11  In  re  Folsom's  Estate,  57  Okl.  79,  159  P.  751. 

(138) 


Art.  2)  ORIGINAL,  CONCURRENT,  OR  APPELLATE  §§    236-238 

• 

rial  questions  of  fact,  which  order  must  plainly  and  distinctly  state 
the  question  to  be  tried.12 

Where  a  petition  to  set  aside  an  order  authorizing  the  guardian 
of  a  minor  to  lease  lands  of  his  ward  is  denied,  an  appeal  will  lie 
therefrom  to  district  court;  the  proceeding  being  a  probate  one.13 

§  237.    Indians  and  Indian  lands 

Act  Cong.  June  7,  1897,  fixes  the  territorial  jurisdiction  of  the 
district  court  at  Pawhuska  in  civil  actions  in  which  a  member  of 
the  Osage  and  Kansas  Tribes  of  Indians  is  a  defendant  as  coex- 
tensive with  the  limits  pf  the  Osage  reservation,  and  does  not  re- 
quire that  the  defendant  must  reside  upon  lands,  the  Indian  title 
to  which  has  not  been  extinguished.  The  district  court  at  Paw- 
huska, under  Act  Cong.  June  7,  1897,  has  jurisdiction  of  a  civil  a'c- 
tion,  the  defendant  in  which  is  a  member  of  the  Osage  Tribe  of 
Indians  residing  in  the  town  of  Pawhuska  on  a  lot,  the  Indian  ti- 
tle to  which  has  been  extinguished.  Act  Cong.  March  3,  1901, 
affords  to  Indian  traders  at  the  Osage  agency  a  cumulative  reme- 
dy for  the  collection  of  their  accounts  against  the  Osage  Indians, 
and  does  not  oust  the  district  court  at  Pawhuska  of  jurisdiction 
of  an  action  on  a  note  executed  by  an  Osage  Indian  to  an  Indian 
trader,  instituted  March  6,  1907,  where  the  note  had  not  been  pre- 
sented to  the  Secretary  of  the  Interior  for  adjustment  under  such 
act.14 

§  238.     — • —     Indian  lands 

Where  a  contest  between  Indians  is  pending  before  the  Commis- 
sioner as  to  allotment  of  lands,  the  state  district  court  is  without 
jurisdiction,  and  without  power  to  enjoin  contesting  parties.15 

A  court  of  equity  has  power  to  grant  relief  in  a  case  where  the 

12  Tilinan  v;  Tilman    (Okl.)  177  P.  558. 

is  Barnett  v.  Blackstone  Coal  &  Mining  Co.,  60  Okl.  41,  158  P.  588. 

i'*  De  Noya  v.  Hill  Inv.  Co.,  127  P.  444,  33  Okl.  663. 

On  January  19,  1906,  the  district  court  of  Choctaw  Nation  did  not  have  ju- 
risdiction to  decree  divorce  between  Indians.  Colbert  v.  Fulton  (Okl.)  157  P. 
1151. 

is  Bowen  v.  Ledbetter,  122  P.  131,  32  Okl.  513. 

Ejectment  will  not  lie  against  adverse  claimant  of  town  lot  in  Cherokee  Na- 
tion in  action  by  person  claiming  possession  under  deed  from  Cherokee  Na- 
tion, while  a  contest  as  to  the  title  before  townsite  commission  having  exclu- 
sive jurisdiction  was  undetermined.  Tynon  v.  Hall,  98  P.  895,  22  Okl.  684. 

(139) 


§  238  JURISDICTION  (Ch.  3 

Dawes  Commission  or  the  Secretary  of  the  Interior  were  induced 
to  cause  to  be  issued  a  patent  to  land  to  the  wrong  person,  where 
the  issuance  of  such  patent  was  occasioned  by  an  erroneous  view 
or  construction  of  the  law  applicable,  or  to  a  gross  or  fraudulent 
mistake  of  facts;  and  in  such  a  case  the  patent  may  be  canceled, 
and  the  allottee  held  to  be  the  trustee  of  the  legal  estate  of  such 
land,  for  the  use  and  benefit  of  the  one  entitled  thereto,  and  in  such 
case  the  courts  of  this  state  have  jurisdiction.16  State  courts  have 
jurisdiction  over  controversies  as  to  possession  between  the  owner 
of  an  Indian  allotment  and  a  sublessee  of  the  land  for  oil  and  gas 
mining  purposes,  although  the  oil  and  gas  did  not  pass  by  the  al- 
lotment, and  though  the  original  lease  required  that  royalties  be 
paid  to  the  tribe,  and  although  it  may  be  necessary  for  such  courts 
to  construe  acts  of  Congress,  Indian  treaties,  and  departmental 
leases  and  conveyances.17 

The  district  court  has  jurisdiction  of  an  action  in  ejectment  or  to 
remove  cloud  from  title  by  heirs  against  the  beneficiary  of  a  will  of 
a  deceased  Indian,  probated  before  the  admission  of  the  state  into 
the  Union,  affecting  allotted  lands  of  the  Indian,  where  the  heirs 
contend  that  the  will  did  not  devise  the  land,  and  that,  if  it  attempt- 
ed to  do  so,  it  was  invalid.18 

A  full-blood  Indian,  being  a  citizen  of  the  United  States  and 
of  the  state,  has  a  right  to  sue  in  the  state  courts,  and  may  have 
his  rights  growing  out  of  treaties  and  acts  of  Congress  relating  to 
his  land  adjudicated,  and  such  rights  as  may  be  protected  at  suit 
of  the  executive  department  of  the*  federal  government  may  also  be 
enforced  in  state  courts  by  an  action  by  the  Indian.19 

District  courts  have  jurisdiction  of  a  partition  suit  of  a  tract  al- 
lotted to  a  citizen  of  the  Five  Civilized  Tribes,  where  such  land 
descended  to  the  heirs  free  of  restrictions.20  The  district  court 
cannot  decree  a  judgment  a  lien  against  rents  and  profits  accruing 
from  the  allotment  of  a  minor  Creek  freedman,21  nor  has  it  jurisdic- 
tion of  a  suit  by  full-blood  Indian  heirs  of  a  deceased  Pawnee  in- 

ie  Robinson  v.  Owen,  30  Okl.  484,  119  P.  995. 

IT  Kohlmeyer  v.  Wolverine  Oil  Co.,  132  P.  497,  37  Okl.  477. 

is  Austin  v.  Chambers,  124  P.  310,  33  Okl.  40. 

i»  Brown  v.  Anderson,  61  Okl.  136,  160  P.  724. 

20  Griffin  v.  Gulp   (Okl.)  174  P.  495. 

21  Tiger  v.  Read,  60  Okl.  106,  159  P.  499. 


I     Art.  2)  -  ORIGINAL,  CONCURRENT,  OR  APPELLATE  §§    239-241 

volving  lands  allotted  to  a  decedent  under  General  Allotment  Act 
Feb.  8,  1887,  as  amended  by  Act  Cong.  Feb.  28,  1891,  and  the  deter- 
mination of  title,  and,  incidentally,  the  rights  to  possession,  of  the 
allotment  while  held  in  trust  by  the  United  States.22 

§  239.    Misconduct  in  office 

Jurisdiction  in  all  actions  against  officers  for  misconduct  in  office 
is  in  the  district  court.23  The  district  court  has  jurisdiction  of 
actions  against  township  officers  for  misconduct  in  office.24 

§  240.     Taxes  and  assessments 

Proceedings  for  refund  of  taxes  erroneously  assessed  and  paid, 
have  been  held  void ;  the  sole  method  by  which  erroneous  assess.- 
ments  involved  might  be  corrected  being  by  proceeding  before  the 
board  of  equalization  and  appeal.25 

§  241.     Public  lands 

Exclusive  jurisdiction  in  and  over  any  lands  in  this  State  acquir- 
ed "by  the  United  States  shall  be,  and  the  same  is  hereby  ceded  to 
the  United  States  for  all  purposes  except  the  service  upon  such  sites 
of  all  civil  and  criminal  process  of  the  courts  of  this,  state ;  but  the 
jurisdiction  so  ceded  shall  continue  no  longer  than  the  United  States 
shall  own  such  lands."  26 

The  courts  cannot  review  the  action  of  the  interior  department 
in  its  disposition  of  the  public  domain  until  after  title  has  passed 
from  the  government.27 

Courts  of  equity  have  power  to  inquire  into  and  correct  both 
judicial  and  executive  action  founded  in  fraud,  mistake,  or  other 
special  ground  in  equity,  when  private  rights  are  invaded,  and  in 
the  exercise  of  such  jurisdiction  may  review  the  determination  of 
the  Land  Office  of  the  United  States.28  In  other  words,  in  a  pro- 
ceeding before  the  Land  Department  where  fraud  or  imposition 
has  been  practiced  on  the  party  interested,  or  the  officers  of  the 

22  Caesar  v.  Krow  (Okl.)  176  P.  927. 

23  State  v.  Russell,  124  P.  1092,  33  Okl.  141. 

24  McGuire  v.  Skelton,  129  P.  739,  36  Okl.  500. 

25  Atoka  County  v.  Oklahoma  State  Bank,  62  Okl.  57,  161  P.  1087. 

26  Rev.  Laws  1910,  §  3191. 

27  Fitzgerald  v.  Keith,  48  P.  110,  5  Okl.  260. 

28  Estes  v.  Timmons,  73  P.  303,  12  Okl.  537,  judgment  affirmed  (1905)  26  S. 
Ct.  85,  199  U.  S.  391,  50  L.  Ed.  241. 

(141) 


§  241  JURISDICTION  -  (Ch.  3 

department,  or  where  the  latter  have  clearly  mistaken  the  law  ap- 
plicable to  the  facts,  equity  may  grant  relief;  but  it  is  not  author- 
ized to  re-examine  into  a  mere  question  of  fact,  dependent  on  con- 
flicting evidence,  and  to  review  the  weight  which  the  officers  at- 
tached to  such  evidence.29 

A  court  of  equity  will  interfere  with  a  decision  of  the  officers 
of  the  Land  Department  only  to  prevent  injustice  by  a  misapplica- 
tion of  the  law,  or  on  account  of  fraud  or  imposition.30 

A  notice  of  the  final  decision  of  the  Land  Office  on  a  motion 
to  review  is  not  an  absolutely  necessary  condition  precedent  to  the 

29  Thornton  v.  Peery,  54  P.  649,  7  Okl.  441:  (1896)  Paine  v.  Foster,  53 
P.  109,  9  Okl.  213.  judgment  affirmed  (1899)  59  P.  252,  9  Okl.  257 ;  Id.  (1900) 
60  P.  24,  9  Okl.  259;  Brown  v.  Donnelly,  59  P.  975,  9  Okl.  32;  Oalhoun  v. 
Violet,  47  P.  479,  4  Okl.  321,  judgment  affirmed  (1899)  19  S.  Ct.  324,  173  U. 
S.  60,  43  L.  Ed.  614 ;  Wilbourne  v.  Baldwin,  47  P.  1045,  5  Okl.  265  ;  McDonald 
v.  Brady,  60  P.  509,  9  Okl.  660 ;  Hammer  v.  Hermann,  65  P.  943,  11  Okl.  127 ; 
Hartwell  v.  Havighorst,  66  P.  &37,  11  Okl.  189,  judgment  affirmed  (1906)  25 
S.  Ct.  793,  196  U.  S.  635,  49  L.  Ed.  629 ;  Jordan  v.  Smith,  73  P.  308,  12  Okl. 
703 ;  Parryman  v.  Cunningham,  82  P.  822,  16  Okl.  94 ;  Greenameyer  v.  Coate. 
88  P.  1054,  18  Okl.  160,  judgment  affirmed  (1909)  29  S.  Ct.  345,  212  U.  S.  434, 
53  L.  Ed.  587 ;  Gourley  v.  Countryman,  90  P.  427,  18  Okl.  220 ;  Ross  v.  Stew- 
art, 106  P.  870,  25- Okl.  611;  Cox  v.  Garrett,  54  P.  546,  7  Okl.  375;  Acers  v. 
Snyder,  58  P.  780,  8  Okl.  659;  (1896)  Paine  v.  Foster,  53  P.  109,  9  Okl.  213, 
judgment  affirmed  (1899)  59  P.  252,  9  Okl.  257;  Bertwell  v.  Haines,  63  P. 
702,  10  Okl.  469 ;  Cope  v.  Braden,  67  P.  475,  11  Okl.  291 ;  Forney  v.  Dow,  73  P. 
1101,  13  Okl.  258;  McCalla  v.  Acker,  78  P.  223,  15  Okl.  52,  judgment  affirmed 
(1906)  26  S.  Ct.  754,  200  U-  S.  613,  50  L.  Ed.  620;  Best  v.  Frazier,  85  P.  1119, 
16  Okl.  523 ;  Reynolds  v.  Hill,  143  P.  1155,  43  Okl.  749 ;  Greenameyer  v.  Coate, 
88  P.  1054,  18  Okl.  160,  judgment  affirmed  (1909)  29  S.  Ct.  345,  212  U.  S.  434, 
53  L.  Ed.  587 ;  Howe  v.  Parker,  90  P.  15,  18  Okl.  282. 

so  King  v.  Thompson,  39  P.  466,  3  Okl.  644. 

The  United  States  Land  Department's  action  in  disposing  of  public  domain 
will  not  be  inquired  into  by  courts,  unless  material  error  of  law  clearly  ap- 
pears or  there  has  been  fraud  practiced  upon  or  by  the  officer.  Jones  v.  Fear- 
now,  53  Okl.  822,  156  P.  309,  judgment  affirmed  Doepel  v.  Jones,  37  S.  Ct.  645, 
244  U.  S.  305,  61  L.  Ed.  1158. 

The  action  of  a  town-site  commission  of  the  Creek  Nation  in  granting  the 
claim  of  one  rival  claimant,  resulting  in  the  issuance  of  a  patent,  and  reject- 
ing the  claim  of  the  other,  will  not  be  inquired  into  in  the  courts  where  it  does 
not  clearly  appear  that  the  commissioners  committed  some  material  error  of 
law,  or  that  misrepresentation  and  fraud  were  practiced  upon  them,  or  that 
they  were  chargeable  with  fraudulent  practices.  Fast  v.  Walcott,  38  Okl.  715, 
134  P.  848. 

In  matters  passed  on  by  the  land  office,  and  which  are  open  for  review  by 
the  courts,  the  findings  of  fact  made  in  the  land  department  are  final,  and 
will  not  be  reviewed  in  the  courts,  in  the  absence  of  fraud,  imposition,  or  mis- 
take. Cook  v.  McCord,  60  P.  497,  9  Okl.  200. 

(142)  . 


Art.  2)  ORIGINAL,  CONCURRENT,  OR  APPELLATE  §§    242~243 

bringing  of  an  action  by  the  successful  party  to  recover  the  posses- 
sion of  real  estate.31 

§  242.    Vested  when — Exemption  from  taxation 

"The  jurisdiction  ceded  shall  not  vest  until  the  United  States 
shall  have  acquired  the  title  of  said  lands  by  purchase,  condemna- 
tion or  otherwise ;  and  so  long  as  the  said  lands  shall  remain  the 
property  of  the  United  States,  when  acquired  as  aforesaid,  and  no 
longer,  the  same  shall  be  and  continue  exempt  and  exonerated 
from  all  state,  county  and  municipal  taxation,  assessment  or  other 
charges  which  may  be  levied  or  imposed  under  the  authority  of 
this  state."  32 

§  243.     Equity 

Equity,  having  once  obtained  jurisdiction,  will  retain  it  to  ad- 
minister complete  relief,  and  to  do  so  may  determine  purely  legal 
rights;38  but  it  need  not  render  judgment  on  the  claim  by  one 


si  Kirtley  v.  Dykes,  62  P.  808,  10  Okl.  16. 

32  Rev.  Laws  1910,  §  3192. 

33  Murray  v.  Speed,  54  Okl.  31,  153  P.  181. 

Where  equity  has  obtained  jurisdiction,  it  will  administer  complete  relief 
to  avoid  multiplicity  of  suits.  Success  Realty  Co.  v.  Trowbridge,  50  Okl.  402, 
150  P.  898 ;  Ball  v.  White,  50  Okl.  429,  150  P.  901 ;  Kansas  City  N.  W.  R.  Co. 
v.  Caton,  60  P.  544,  9  Kan.  App.  272 ;  Mathews  v.  Sniggs,  75  Okl.  108,  182  P. 
703;  Holmes  v.  Holt,  136  P.  246,  90  Kan.  774,  judgment  affirmed  on  rehear- 
ing 139  P.  1030,  92  Kan.  254,  and  affirmed  on  second  rehearing  142  P.  369,  93 
Kan.  7 ;  Cook  v.  Warner,  140  P.  424,  41  Okl.  781. 

The  jurisdiction  of  equity  having  attached  on  a  petition  by  the  holder  of 
warrants  which  had  been  merged  into  a  funding  proceeding  to  have  set  aside 
such  proceeding,  and  to  cancel  such  bonds  on  the  ground  that  the  town  had 
failed  to  dispose  of  any  of  the  bonds  and  retained  all  of  them,  refusing  to  re- 
fund the  same  as  required  by  law,  the  court,  having  all  the  parties  before  it, 
will  adjudicate  on  the  rights  of  the  parties  connected  with  the  subject-matter 
of  the  proceeding  without  remitting  them  to  maintain  a  separate  action  at 
law  upon  the  warrants  merged  in  such  funding  proceeding.  De  Roberts  v. 
Town  of  Cross,  101  P.  1114,  23  Okl.  888. 

In  an  action  by  a  vendor  to  recover  the  price  of  land  sold  under  a  contract 
providing  that  he  should  make  a  sufficient  deed  and  furnish  an  abstract  show- 
ing perfect  title,  the  answer  and  cross-petition  admitted  possession  under  the 
contract,  and  also  that  plaintiff  had  failed  to  tender  a  sufficient  deed,  and  the 
abstract  showed  an  outstanding  claim  the  holder  of  which  had  threatened  to 
eject  defendant,  and  had  sued  him  in  ejectment,  also,  the  refusal  of  plaintiff 
to  correct  the  defects  in  the  title,  and  averred  a  willingness  to  pay  the  bal- 
ance when  the  title  was  perfected  and  asked  relief.  Held,  that  a  demurrer  to 
the  answer  and  cross-bill  should  be  overruled,  and  cause  retained,  until  the 

(143) 


§§  243-245  JURISDICTION  (Ch.  3 

of  the  parties,  where  no  sufficient  evidence  has  been  introduced  to 
determine  the  amount  thereof.34 

While  one  general  partner  could  not  maintain  his  action  at  law 
against  his  copartner,  yet  where  such  copartner  sought  equitable 
aid  to  obtain  settlement  of  partnership  affairs,  and  court  by  consent 
treated  case  as  proceeding  in  equity,  it  had  jurisdiction  and  should 
have  ordered  settlement.35 

A  court  of  equity  of  one  state,  having  personal  jurisdiction  of  a 
defendant,  may  compel  performance  of  contracts  to  convey  land  in 
another  state,  or  grant  other  relief  arising  out  of  contract,  fraud,  or 
trust.  But  an  action  may  not  be  maintained  in  this  state  involving 
merely  the  title  and  possession  to  land  in  another  state.36 

A  court  of  chancery  has  jurisdiction  to  construe  a  will,  even 
though  the  doubt  arising  is  a  speculative  one.37 

§  244.    Foreclosure 

Where  in  a  proceeding  to  foreclose  a  mechanic's  lien  on  school 
land,  the  title  to  which  was  in  the  government,  no  interest  of  {he 
United  States  was  sought  to  be  taken,  but  only  such  interest  as  the 
person  entitled  to  possession  had  in  the  land,  the  district  court  had 
jurisdiction.38 

§  245.     Superior  courts 

Every  superior  "court  shall  have  and  exercise  concurrent  .juris- 
diction with  the  district  court  in  all  proceedings,  causes  or  matters, 
and  concurrent  jurisdiction  with  the  county  court  in  all  civil  and 
criminal  matters,  except  matters  of  probate.  Provided,  that  in  mat- 
ters of  probate  appeals  may 'be  taken  from  the  county  court  to 
either  the  district  or  superior  court."  39 

This  statute  is  valid.40    It  confers  on  superior  courts  jurisdiction 

rights  of  the  parties  could  be  determined.  Brown  v.  McCrie,  94  P.  144,  77 
Kan.  230. 

34  Galbreath  Gas  Co.  v.  Lindsey,  62  Okl.  84,  161  P.  826. 

ss  Baughman  v.  Hebard    (Okl.)  166  P.  88. 

36  Caldwell  v.  Newton,  163  P.  163,  99  Kan.  846. 

37  Williams  v.  Williams,  14  P.  394,  73  Cal.  99. 
ss  Jarrell  v.  Block,  92  P.  167,  19  Okl.  467. 

so  Sess.  Laws  1915,  p.  21,  §  2. 

40  Sess.  Laws  1909,  c.  14,  art.  7,  creating  a  county  superior  court  for  each 
county,  is  not  in  violation  of  Const,  art.  7,  §§  1,  10,  relating  to  the  jurisdic- 
tion of  district  courts,  in  that  it  confers  on  superior  courts  jurisdiction  to  con- 

(144) 


Art.  2)  ORIGINAL,   CONCURRENT,  OR  APPELLATE  §§    245~247 

of  appeal  from  judgment  of  county  court  in  probate  proceeding  in- 
stituted to  contest  probate  of  will.41 

The  superior  courts  are  not  "county  courts,"  as  the  term  is  used 
in  section  19  of  the  Bill  of  Rights,  even  where  exercising  jurisdic- 
tion concurrent  with  county  courts.42 

§  246.     Supreme  Court 

"The  appellate  jurisdiction  of  the  Supreme  Court  shall  be  coex- 
tensive with  the  state,  and  shall  extend  to  all  civil  cases  at  law 
and  in  equity,  and  to  all  criminal  cases  until  a  Criminal  Court  of 
Appeals  with  exclusive  appellate  jurisdiction  in  criminal  cases  shall 
be  established  by  law.  The  original  jurisdiction  of  the  Supreme 
Court  shall  extend  to  a  general  superintending  control  over  all  in- 
ferior courts  and  all  commissions  and  boards  created  by  law.  The 
Supreme  Court  shall  have  power  to  issue  writs  of  habeas  corpus, 
mandamus,  quo  warranto,  certiorari,  prohibition,  and  such  other 
remedial  writs,  as  may  be  provided  by  law,  and  to  hear  and  de- 
termine the  same ;  and  the  Supreme  Court  may  exercise  such  other 
and  further  jurisdiction  as  may  be  conferred  upon  it  by  law.  Each 
of  the  justices  shall  have  power  to  issue  writs  of  habeas  corpus  to 
any  part  of  the  state  upon  petition  by  or  on  behalf  of  any  person 
held  in  actual  custody,  and  make  such  writs  returnable  before  him- 
self, or  before  the  Supreme  Court,  or  before  any  district  court,  or 
judge  thereof,  in  the  state."  48 

This  section  of  the  Constitution,  which  grants  to  the  Supreme 
Court  general  supervising  control  over  inferior  courts  and  all  com- 
missions and  boards  created  by  law,  refers  to  inferior  courts  when 
exercising  judicial  functions,  and  when  hearing  and  determining 
matters  before  said  courts  from  which  an  appeal  may  be  taken  or 
to  which  writs  of  certiorari  or  other  like  writs  may  lie.44 

§  247.    Appeals  from  county  court 

"Appeals  and  proceedings  in  error  shall  be  taken  from  the  judg- 
ments of  county  courts  direct  to  the  Supreme  Court,  in  all  cases 

fer  exclusive  rights  conferred  by  such  statute  on  district  courts.     Burks  v. 
Walker,  109  P.  544,  25  Okl.  353. 

4<i  In  re  Nichols'  Will,  64  Okl.  241,  166  P.  1087. 

42  Antonelli  v.  State,  117  P.  654,  6  Okl.  Or.  157. 

^s  Const.  Okl.  art.  7,  §  2. 

4*  Haddock  v.  Johnson,  80  Okl.  250,  194  P.  1077. 

HON.PL.&  PRAC.— 10  (145) 


§  247  JURISDICTION  (Ch.  3 

appealed  from  justices  of  the  peace,  and  in  all  criminal  cases  of 
which  the  county  court  is  vested  with  jurisdiction,  and  in  all  civil 
cases  originally  brought  in  the  county  court,  in  the  same  manner 
and  by  like  proceedings  as  appeals  are  taken  to  the  Supreme  Court 
from  the  judgments  of  the  district  court."  45 

45  Const.  Okl.  art.  7,  §  15. 
(146) 


Ch.4)  VENUE  §  248 

CHAPTER  IV 

VENUE 

Sections 

248-264.     Article  I. — Where   actions   brought 

265-273.    Article  II.— Change  of  venue. 

ARTICLE  I 

WHERE  ACTIONS  BROUGHT 

Sections 

248.  Where  subject  located. 

249.  Subject-matter. 

250.  Relating  to  real  estate. 

251.  Land  located  in  more  than  one  county — Specific  performance. 

252.  Where  cause  arose. 

253.  Residence  of  parties. 

254.  Domestic  corporation — Insurance  company. 

255.  Foreign  corporations  and  nonresidents. 

256.  Process — Foreign  corporations. 

257.  When  charter  revoked. 

258.  Actions  against  guaranty  companies. 

259.  Actions  against  transportation  or  transmission  companies. 

260.  Actions  against  turnpike  companies. 

261.  Action  against  board  of  county  commissioners. 

262.  Divorce  and  annulment. 

263.  Other  actions. 

264.  Waiver  of  right. 

§  248.     Where  subject  located 

"Actions  for  the  following  causes  must  be  brought  in  the  county 
in  which  the  subject  of  the  action  is  situated,  except  as  provided 
in  the  next  section : 

''First.  For  the  recovery  of  real  property,  or  of  any  estate,  or  in- 
terest therein,  or  the  determination  in  any  form  of  any  such  right  or, 
interest. 

"Second.  For  the  partition  of  real  property. 

"Third.  For  the  sale  of  real  property  under  a  mortgage,  lien,  or 
other  incumbrance  or  charge. 

"Fourth.  To  quiet  title,  to  establish  a  trust  in,  remove  a  cloud 
on,  set  aside  a  conveyance  of,  or  to  enforce  or  set  aside  an  agree- 
ment to  convey  real  property."  x 

i  Rev.  Laws  1910,  §  4671. 

(147) 


§§  249-250  VENUE  (Ch.  4 

§  249.     Subject-matter 

In  an  action  for  damages  by  an  alleged  conspiracy  of  defendants 
to  deny  plaintiff's  right  to  use  certain  pasture,  where  no  relief  is 
asked  as  to  the  real  estate,  the  damages  are  only  to  personal  proper- 
ty, and  the  action  is  transitory.2 

Payment  of  usury  and  demand  for  its  return  creates  right  of 
action  for  its  recovery  which  may  be  maintained  in  the  county  in 
which  payment  was  made.3 

Where  a  liability  accrues  on  a  supersedeas  bond  given  in  a 
cause  tried  in  one  county,  action  on  the  bond  may  be  maintained 
in  another  county,  though  the  company  and  its  sureties  reside  and 
are  summoned  in  other  counties.4 

An  act  of  injunction  to  prevent  the  closing  of  an  undergrade 
crossing  of  a  railroad  operates  in  personam,  and  is  not  one  of  those 
which  must  be  brought  in  the  county  in  which  the  subject  of  the 
action  is  situated.5  \ 

Where  a  party  is  a  resident  of  the  state,  and  owns  property  in 
some  other  county  than  that  of  his  residence,  and  the  action  is  a 
personal  one,  suit  to  reach  his  property  can  only  be  brought  in  the 
county  where  he  resides,  or  where  he  may  be  summoned.6 

§  250.    Relating  to  real  estate 

An  action  for  the  price  of  land  and  to  enforce  a  vendor's  lien 
must  be  brought  in  the  county  where  the  land  lies,7  as  must  an 
action  to  remove  cloud  from  title,8  and  an  action  for  partition ; 9  but 


2  Dunn  &  Gilliam  v.  District  Court  of  Carter  County,  128  P.  114,  35  Okl.  38. 

s  Thome  v.  Milliken,  57  Okl.  735,  157  P.  914. 

*  Oklahoma  Fire  Ins.  Co.  v.  Kimple,  57  Okl.  398,  156  P.  300. 

5  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Wynkoop,  85  P.  595,  73  Kan.  590. 

s  Barton  v.  Hanauer,  44  P.  1007,  4  Kan.  App.  531. 

7  Ames  v.  Milam,  53  Okl.  739,  157  P.  941 ;   Newcomer  v.  Sheppard,  51  Okl. 
335,  152  P.  66 ;    Whitehead  v.  Jefferson,  51  Okl.  42,  151  P.  681. 

8  A  petition  construed  and  held  that  the  object  of  the  action  was  to  destroy 
a  pretended  exchange  and  restore  plaintiff  and  his  land  to  that  freedom  from 
cloud  existing  before  the  transaction,  and  that  hence,  under  Code  Civ.  Proc. 

9  In  an  action  to  determine  the  interest  of  the  parties  in  several  tracts  and 
for  partition,  the  court  is  without  jurisdiction,  so  far  as  the  action  affects 
land  in  another  county,  of  infant  defendants  having  no  interest  in  the  land 
in  the  county  in  which  suit  is  brought,  and  not  residing  therein ;   and  no  con- 
sent of  theirs  could  give  jurisdiction.    Martin  v.  Battey,  125  P.  88,  87  Kan. 
582,  Ann.  Cas.  1914A,  440. 

(148). 


Art.  1)  WHERE   ACTIONS    BROUGHT  §§    250-251 

the  real  estate  clause  of  the  statute  does  not  apply  to  actions  by 
which  defendant's  conduct  is  sought  to  be  controlled,  though  title 
may  be  affected  thereby,10  nor  does  it  apply  to  an  action  for  dam- 
ages to  real  estate.11 

An  action  by  legal  representative  of  an  insane  person's  estate  to 
reclaim  trust  fund  diverted  by  a  former  guardian  and  invested  in 
land,  and  to  establish  trust  against  land,  is  properly  brought  in 
county  where  land  is  situated.12 

An  action  to  foreclose  a  mortgage,  where  plaintiff  alleged  that 
the  note  and  mortgage  were  wrongfully  in  possession  of  another, 
is  a  local  action,  though  plaintiff  prays  in  his  petition  that  such 
wrongful  holder  may  be  required  to  bring  such  note  and  mortgage 
into  court.18 

Where  an  action,  brought  in  a  county  other  than  that  in  which 
the  land  is  located,  to  enforce  a  vendor's  lien,  is  treated  as  a  personal 
action  and  a  judgment  in  personam  only  is  rendered,  it  is  too  late 
thereafter  to  urge  that  the  action  was  one  in  rem,  and  that  the  court 
had  no  jurisdiction.14 

§  251.    Land   located   in   more   than   one  county — Specific 

performance 

"If  real  property,  the  subject  of  an  action,  be  an  entire  tract,  arul 
situated  in  two  or  more  counties,  or  if  it  consist  of  separate  tracts, 
situated  in  two  or  more  counties,  the  action  may  be  brought  in  any 
county  in  which  any  tract,  or  part  thereof,  is  situated,  unless  it  be 
an  action  to  recover  possession  thereof,  and  if  the  property  be 

§  48  (Gen.  St.  1909,  §  5641),  the  action  was  properly  brought  where  the  land 
was  situated.  Randall  v.  Ross,  147  P.  72,  94  Kan.  708. 

Plaintiff  sued  in  A.  county  to  quiet  title  to  land  in  that  county  against  cer- 
tain defendants  claiming  interests  in  that  land,  and  also  to  lands  in  B.  county 
against  defendants  claiming  no  interest  in'  the  A.  county  laud.  Held,  that 
the  court  had  no  jurisdiction  over  the  controversy  as  to  the  land  in  B.  coun- 
ty, under  Code  Civ.  Proc.  §  46  (Gen.  St.  1901,  §  4476).  Jones  v.  Redemption  & 
Investment  Co.,  99  P.  1129,  79  Kan.  477. 

10  Zane  v.  Vawter,  172  P.  37,  102  Kan.  887. 

n  An  action  to  recover  damages  to  realty,  improvements,  and  crops  from 
fire  held  not  an  action  concerning  real  property,  the  venue  of  which  is  fixed 
by  Code  Civ.  Proc.  §  48  (Gen.  St.  1909,  §  5641),  in  the  county  where  the  prop- 
erty is  situated.  Hill  v.  Missouri  Pac.  Ry.  Co.,  146  P.  351,  94  Kan.  254. 

12  Clingman  v.  Hill,  104  Kan.  145,  178  P.  243. 

is  Mack  v.  Austin,  72  P.  551,  67  Kan.  36. 

i*  Newcomer  v.  Sheppard,  51  Okl.  335,  152  P.  66. 

(149) 


§§  251-253  VENUE  (Ch.  4 

an  entire  tract,  situated  in  two  or  more  counties,  an  action  to  re- 
cover possession  thereof  may  be  brought  in  either  of  such  coun- 
ties ;  but  if  it  consists  of  separate  tracts,  in  different  counties,  the 
possession  of  such  tracts  must  be  recovered  by  separate  actions 
brought  in  the  counties  where  such  tracts  are  situated.  An  ac- 
tion to  compel  the  specific  performance  of  a  contract  to  sell  real 
estate  may  be  'brought  in  the  county  where  the  land  lies  or  where 
the  defendants  or  any  of  them  reside  or  may  be  summoned."  15 

An  action  to  compel  defendant  to  reconvey  land  claimed  by  him 
under  a  deed  alleged  to  have  been  procured  through  his  fraud 
is  transitory  and  not  local,  and  may  be  brought  in  any  county  where 
personal  service  can  be  had  upon  him.16 

§  252.     Where  cause  arose 

"Actions  for  the  following  causes  must  be  brought  in  the  county 
where  the  cause,  or  some  part  thereof,  arose : 

"First.  An  action  for  the  recovery  of  a  fine,  forfeiture  or  penalty 
imposed  by  statute,  except  when  imposed  for  an  offense  committed 
on  a  river  or  other  stream  of  water,  road  or  other  place  which  is 
the  boundary  of  two  or  more  counties,  the  cause  of  action  shall  be 
deemed  to  have  arisen  in  each  of  said  counties,  and  may  be  brought 
in.  any  county  bordering  on  such  river,  water-course,  road  or  other 
place,  and  opposite  to  the  place  where  the  offense  was  committed. 

"Second.  An  action  against  a  public  officer  for  an  act  done  by 
him  in  virtue,  or  under  color  of  his  office,  or  for  neglect  of  his  offi- 
cial duties. 

"Third.  An  actio'n  on  the  official  bond  or  undertaking  of  a  public 
officer."  17 

§  253.     Residence  of  parties 

A  civil  action  seeking  to  subject  the  property  of  a  resident  to  the 
payment  of  a  debt  must  be  commenced  in  the  county  where  de- 

is  Rev.  Laws  1910,  §  4672. 

Where  in  Code  Civ.  Proc.  §  51  (Gen.  St.  1909,  §  5644),  relating  to  venue,  it 
is  provided  that  certain  actions  "must"  and  others  "may"  be  brought  in  cer- 
tain counties,  and  that  all  others  must  be  brought  in  the  county  of  defend- 
ant's residence  or  where  he  may  be  summoned,  actions  in  relation  to  which 
the  term  "may"  is  used  are  not  thereby  rendered  local  and  may  be  brought  in 
any  county  in  which  defendant  is  summoned.  Henry  v.  Missouri,  K.  &  T. 
Ry.  Co.,  142  P.  972,  92  Kan.  1017 ;  Id.,  142  P.  973,  92  Kan.  1020. 

16  Zane  v.  Vawter,  172  P.  37,  102  Kan.  887. 

IT  Rev.  Laws  1910,  §  4673. 

(150) 


Art.  1)  WHERE   ACTIONS   BROUGHT  §   254 

fendants  or  one  of  them  resides  or  may  be  summoned;18    but  a 
cause  of  action  must  exist  against  the  local  defendant.10 

§  254.     Domestic  corporation — Insurance  company 

"An  action,  other  than  one  of  those  mentioned  in  the  first  three 
sections  of  this  article,  against  a  corporation  created  by  the  laws 
of  this  state,  may  be  brought  in  the  county  in  which  it  is  situated, 
or  has  its  principal  office  or  place  of  business,  or  in  which  any  of 


is  Friedman  v.  First  Nat.  Bank,  39  Okl.  486,  135  P.  1069,  49  L.  R.  A.  (N. 
S.)  548 ;  Rullman  v.  Hulse,  7  P.  210,  33  Kan.  670. 

Where  the  maker  of  a  nonnegotiable  note  is  sued  in  a  county  in  which  the 
indorser  resides,  but  in  which  the  maker  does  not  reside,  and  where  the  in- 
dorser  makes  no  defense,  but  permits  .judgment  by  default,  it  is  not  error  to 
overrule  motion  by  the  maker  to  set  aside  the  service  on  him,  because  he  is 
not  a  resident  of  the  county,  and  was  not  served  therein.  Steele  v.  Hudson, 
30  Okl.  518,  120  P.  616. 

isMakemson  v.  Edwards,  101  Kan.  269,  166  P.  508. 

A  defendant,  served  in  a  county  other  than  the  one  in  which  the  action  is 
brought,  will  not  be  held  bound  thereby,  if  the  resident  defendant  was  joined 
to  obtain  jurisdiction  over  such  nonresident  defendant,  and  not  in  good  faith 
to  recover  a  judgment  against  the  resident  defendant.  Hawkins  v.  Brown, 
97  P.  479,  78  Kan.  284.  The  rule  that  a  defendant,  served  in  a  county  other 
than  the  one  in  which  the  action  is  brought,  will  not  be  bound  thereby,  if  the 
resident  defendant  was  joined  to  obtain  jurisdiction  of  such  nonresident  de- 
fendant, and  not  in  good  faith  to  recover  a  judgment  against  the  resident 
defendant,  will  not  be  applied  against  an  innocent  party,  who  in  good  faith, 
and  in  the  honest  belief  that  his  cause  is  just,  and  that  he  has  a  right  to 
recover  against  the  resident  defendant,  is  defeated  by  him,  after  a  full  trial, 
by  a  plea  of  the  statute  of  limitations.  Id. 

In  action  for  money  deposited  by  plaintiff  to  secure  his  performance  of  a 
contract,  brought  on  ground  of  its  conversion  by  defendant  bank  and  a  pro- 
moter, the  latter,  who  had  joined  the  bank  in  the  scheme  to  turn  over  money 
to  another,  though  he  had  no  interest  in  money,  was  a  proper  party  defend- 
ant, so  that  suit  was  properly  brought  in  county  of  his  residence.  Oklahoma 
State  Bank  of  Gushing  v.  Buzzard  (Okl.)  175  P.  750. 

Where  an  action  was  brought  against  nonresidents  and  their  property 
attached,  and  also  against  a  resident  of  another  county,  and  there  was  no 
evidence  to  sustain  a  cause  of  action  against  the  nonresidents,  the  court  had 
no  jurisdiction  over  the  resident.  Hembrow  v.  Winsor,  145  P.  837,  94  Kan.  1. 

A.  and  B.,  joint  makers  of  a  promissory  note,  were  sued  on  the  same 
before  it  was  due  in  the  county  of  A.'s  residence,  and  a  summons  issued  to 
B.'s  county,  and  his  property  there  attached  on  the  ground  of  anticipated 
fraudulent  transfer,  but  no  attachment  was  issued  against  A.,  and  no  ground 
therefor  existed.  Held  that,  as  the  action  was  wrongfully  begun  against  A., 
it  could  not  be  begun  against  B.  in  A.'s  county,  and  therefore  B.  was  entitled 
to  have  the  attachment  dissolved.  Rullman  v.  Hulse,  5  P.  176,  32  Kan.  598, 
rehearing  denied  7  P.  210,  33  Kan.  670. 

In  an  action  against  one  party  on  a  lease  and  on  a  separate  writing  where- 

(151) 


§§  254-255  VENUE  (Ch.  4 

the  principal  officers  thereof  may  reside,  or  be  summoned,  or  in  the 
county  where  the  cause  of  action  or  some  part  thereof  arose."  20 

A  special  appearance  motion  of  a  corporation  defendant,  going 
to  the  jurisdiction  of  the  district  court  of  one  county,  after  service 
on  a  proper  individual  defendant  of  another  county,  and  a  service 
on  the  corporation  in  the  county  of  its  domicile,  was  properly  over- 
ruled.21 

The  provision  that  an  action  against  a  domestic  company  may  be 
brought  in  the  county  where  the  cause  of  action  or  some  part  there- 
of arose  applies  to  all  kinds  of  actions.22 

§  255.     Foreign  corporations  and  nonresidents 

"In  addition  to  the  other  counties  in  which  an  action  may  be 
brought  against  a  nonresident  of  this  state,  or  a  foreign  corpora- 
tion, such  action  may  be  brought  in  any  county  in  which  there  may 
be  property  of,  or  debts  owing  to,  such  defendant,  or  where  such  de- 
fendant may  be  found;  if  such  defendant  be  a  foreign  insurance 
company,  the  action  may  be  brought  in  any  county  where  such 
cause  of  action,  or  any  part  thereof,  arose,  or  where  the  plaintiff 
resides,  or  where  such  company  has  an  agent."  23 

"Any  foreign  corporation,  doing  business  in  the  state  of  Okla- 
homa, and  any  person  now  or  hereafter  having  any  cause  of  action 
against  such  corporation,  arising  on  contract,  tort,  or  otherwise, 
may  file  suit  in  any  county  in  the  state  of  Oklahoma  where  the 
plaintiff  resides  or  where  said  corporation  has  its  principal  place 
of  business,  or  has  property,  or  in  any  county  where  said  corpo- 
ration has  an  agent  appointed  upon  whom  service  of  summons  or 
other  process  may  be  had."  24 

in  another  guaranties  the  rent,  the  service  of  summons  upon  one  defendant  in 
the  county  where  the  action  was  brought  does  not  authorize  service  of  sum- 
mons upon  the  other  defendant  in  another  countv.  Marshall  v.  Saline  River 
Land  &  Mineral  Co.,  89  P.  905,  75  Kan.  445. 

20  Rev.  Laws  1910,  §  4674,  as  amended  by  Sess.  Laws  1913,  p.  133,  §  1. 

21  Oklahoma  State  Bank  of  Gushing  v.  Buzzard  (Okl.)  175  P.  750. 

22  Oklahoma  Fire  Ins.  Co.  v.  Kimple,  57  Okl.  398,  156  P.  300. 

23  Rev.  Laws  1910,  §  4677. 

An  action  against  a  nonresident  insurance  company  is  properly  brought 
in  the  county  of  the  plaintiff's  residence.  Haynes  v.  City  Nat.  Bank  of  Law- 
ton,  121  P.  182,  30  Okl.  614. 

24  Sess.  Laws  1910-11,  p.  46,  §  1. 

Statute  is  valid.  Prairie  Oil  &  Gas  Co.  v.  District  Court  of  Grady  Coun- 
ty (Okl.)  174  P.  1056. 

(152) 


Art.  1)  WHERE  ACTIONS   BROUGHT  §§   256~257 

§  256.    Process — Foreign  corporations 

"Any  foreign  corporation,  doing  business  in  the  state  of  Okla- 
homa, having  failed  either  to  appoint  an  agent  upon  whom  serv- 
ice of  summons  or  other  process  may  be  had,  or  failed  to  file  in  the 
office  of  the  secretary  of  state  a  duly  authenticated  copy  of  its  ar- 
ticles of  incorporation  or  charter,  or  having  failed  to  pay  the  license 
fee  as  required  by  law,  then  in  the  event  of  said  foreign  corpora- 
tion having  failed  to  comply  with  any  of  the  provisions  of  the  law 
as  above  referred  to,  any  person  now  or  hereafter  having  any 
cause  of  action  against  any  foreign  corporation  may  file  suit  against 
said  foreign  corporation  in  any  county  in  the  state  and  service  of 
summons  or  any  process  upon  the  secretary  of  state  shall  be  suffi- 
cient to  give  jurisdiction  of  the  person  to  any  court  in  this  state 
having  jurisdiction  of  the  subject-matter."  25 

§  257.    When  charter  revoked 

"Any  foreign  corporation  having  complied  with  the  law  by  ap- 
pointing an  agent  upon  whom  service  of  summons  or  other  process 
may  be  had,  or  by  filing  an  authenticated  copy  of  its  article  of 
incorporation  or  charter  with  the  secretary  of  state,  or  having  paid 
the  license  fee  as  required  by  law,  and  heretofore  the  charter  of  said 
corporation  having  been  revoked  by  the  secretary  of  state  or  other 
proper  officer,  or  if  the  charter  of  any  foreign  corporation  should 
hereafter  be  revoked  by  the  secretary  of  state  or  other  proper  offi- 
cer, then  any  person  having  now  or  hereafter  any  cause  of  action 
against  such  foreign  corporation,  may  file  suit  against  said  for- 
eign corporation  in  any  county  in  the  state  of  Oklahoma  and  serv- 
ice of  summons  or  other  process  upon  the  secretary  of  state  shall 
be  sufficient  to  give  jurisdiction  of  the  person  to  any  court  in  this 
state  having  jurisdiction  of  the  subject-matter,  and  under  provi- 
sions of  this  act  jurisdiction  is  hereby  conferred  upon  any  court 
having  jurisdiction  of  the  subject-matteY,  sitting  in  any  county 
in  this  state,  whether  it  be  in  the  county  where  the  secretary  of 
state  is  served  or  resides,  or  elsewhere  in  said  state."  2e 

25  Sess.  Laws  1910-11,  p.  47,  §  2. 

A  corporation  having  its  principal  place  of  business  in  Tejtas,  but  an  office 
»  in  Roff,  Okl.,  where  it  did  some  business,  held  not  entitled  to  have  the  case 
transferred  from  Ada  to  Roff  under  Sess.  Laws  1910-11,  c.  32,  §  2.    Roff  Oil 
&  Cotton  Co.  v.  King,  46  Okl.  31,  148  P.  90. 

26  Sess.  Laws  1910-11,  p.  47,  §  3. 

(153) 


§§  258-259  VENUE  (Ch.  4 

§  258.     Actions  against  guaranty  companies 

Any  surety  company  doing  business  under  the  provisions  of  ar- 
ticle 10,  c.  15,  Rev.  Laws  1910,  "may  be  sued  in  respect  thereof  in 
any  court  of  the  United  States  or  the  state  of  Oklahoma  which  has 
jurisdiction  of  actions  or  suits  upon  which  such  recognizances,  stip- 
ulations, bond  or  undertaking  was  made  or  guaranteed.  And  for 
the  purpose  of  this  article  such  recognizance,  stipulation,  bond  or 
undertaking  shall  be  treated  as  made  or  guaranteed  in  the  county 
in  which  the  office  is  located  to  which  it  is  returnable,  or  in  which 
it  is  filed,  or  in  the  county  in  which  the  principal  of  such  recogni- 
zance, stipulation,  bond  or  undertaking  resided  when  it  was  made 
or  guaranteed."  *7 

§  259.  Actions  against  transportation  or  transmission  companies 
"Actions  may  be  commenced  against  any  transportation  or  trans- 
mission company  in  the  county  where  any  person  resides  upon 
whom  service  of  summons  is  authorized  to  be  made,  irrespective 
of  the  order  in  which  such  persons  are  named  in  this  chapter,  and 
irrespective  of  the  residence  of  any  superior  officer  or  authorized 
person  upon  whom  service  of  summons  may  be  had;  or  in  the 
county  where  the  cause  of  action,  or  some  part  thereof,  may  have 
accrued ;  or,  in  any  county  through  which  or  into  which  the  lines 
of  road  or  any  part  of  the  structure  of  such  company  may  be,  or 
passes ;  and  the  plaintiff  may  elect  in  which  county  he  will  bring 
the  action."  28 

Where  corporations  in  adjoining  states  operate  a  continuous 
line  of  railroad  jointly  by  the  same  officers  and  employes,  an  in- 
jured employe  may  sue  in  the  courts  of  either  state.29 


2  7  Rev.  Laws  1910,  §  1348. 

28  Rev.  Laws  1910,  §  4675. 

Under  Const,  art.  9,  §  43,  suit  may  be  brought  against  a  foreign  corpora- 
tion operating  a  railway  in  the  state  in  the  county  where  the  plaintiff  re- 
sides, though  the  cause  of  action  did  not  arise  there,  and  defendant  has  no 
agent  there  and  no  part  of  its  line  of  railway.  Atchison,  T.  &  S.  F.  Ry.  Co. 
v.  Lambert,  123  P.  428,  32  Okl.  665.  Const,  art.  9,  §  43,  as  to  venue  of  actions 
against  foreign  corporations,  relates  to  public  service  corporations  as  well  as 
private  corporations.  Id.  Comp.  Laws,  §  5584,  providing  the  venue  of  ac- 
tions against  transportation  companies,  does  not  limit  the  right  of  a  plain- » 
tiff  to  sue  such  a  company,  when  a  foreign  corporation  in  the  county  of  his 
residence,  pursuant  to  Const,  art.  9,  §  43.  Id. 

2»  Wichita  Falls  &  N.  W.  Ry.  Co.  v.  Puckett,  53  Okl.  463,  157  P.  112. 

(154) 


Art.  1)  WHERE   ACTIONS   BROUGHT  §§    260-264 

§  260.     Actions  against  turnpike  companies 

"An  action,  other  than  one  of  those  mentioned  in  the  first  three 
sections  of  this  article,  against  a  turnpike  road  company,  may  be 
brought  in  any  county  in  which  any  part  of  such  turnpike  road 
or  roads  lie."  30 

s 

§  261.     Action  against  board  of  county  commissioners 

"Any  person  who  has  been  aggrieved  by  any  act,  rule  or  regula- 
tion of  said  board  shall  have  his  right  of  action  to  have  such  issue 
tried  in  the  district  court  of  the  county  in  which  some  member  of 
the  board  shall  reside."  31 

§  262.     Divorce  and  annulment 

"An  action  for  divorce  or  annulment  of  marriage  may  be  brought 
in  the  county  of  which  the  plaintiff  is  an  actual  resident  at  the  time 
of  filing  the  petition."  32 

§  263.     Other  actions 

"Every  other  action  must  be  brought  in  the  county  in  which  the 
defendant  or  some  one  of  the  defendants  resides  or  may  be  sum- 
moned ;  except  actions  against  makers  of  notes,  claims  or  other 
indebtedness  which  have  been  assigne*d,  sold  or  transferred  by  or 
from  the  original  payee  or  obligee,  which  actions  against  such 
original  maker  of  such  notes,  claims  or  indebtedness  can  only  be 
brought  in  the  county  in  which  the  said  maker  of  such  note,  claim 
or  indebtedness  or  some  one  of  the  original  makers  of  such  note, 
claim  or  indebtedness  resides :  Provided,  however,  this  section  shall 
not  in  any  way  change  or  limit  section  4671  of  the  Revised  Laws 
of  Oklahoma,  1910."  33 

§  264.     Waiver  of  right 

Where  defendant  demurs  to  the  petition  without  objecting  to 
the  jurisdiction,  he  waives  his  right  to  have  the  case  filed  and  tried 
in  the  county  of  his  residence.34 

so  Rev.  Laws  1910,  §  4676. 

si  Rev.  Laws  1910,  §  6913. 

32  Rev.  Laws  1910,  §  4678,  as  amended  by  Sess.  Laws  1915,  p.  199,  §  1. 

ss  Rev.  Laws  1910,  §  4679,  as  amended  by  Sess.  Laws  1915,  p.  104,  §  1. 

s*  Lindley  v.  Kelly,  47  Okl.  328,  147  P.  1015. 

Objection  that  an  action  should  have  been  brought  in  the  county  where  the 
cause  of  action  arose  is  waived  by  filing  demurrers  presenting  other  grounds, 
together  with  the  objection  to  the  venue.  Hume  v.  Cragin,  61  Okl.  219,  160  P. 
•621. 

(155) 


§§  265-267  VENUE  (Ch.  <t 

ARTICLE  II 

CHANGE  OF  VENUE 

Sections  . 

265.  Change  of  venue. 

266.  Discretion. 

267.  Grounds — Disqualification  of  judge. 

268.  Local  prejudice. 

269.  Application. 

270.  Hearing  and  order. 

271.  Waiver. 

272.  Proceedings  after  change. 

273.  Form. 

§  265.     Change  of  venue 

"In  all  cases  in  which  it  is  made  to  appear  to  the  court  that  a 
fair  and  impartial  trial  cannot  be  had  in  the  county  where  the  suit 
is  pending-,  the  court  may,  on  application  of  either  party,  change 
the  place  of  trial  to  some  county  where  such  objections  do  not 
exist."  85 

§  266.     Discretion 

The  statute  is  not  mandatory,  and  does  not  require  grant  of  a 
change  on  any  showing,  but  the  court  is  vested  with  a  sound  dis- 
cretion,36 and  a  conclusion  or  judgment  of  the  court  regarding  an 
application  for  a  change  of  venue  that  is  clearly  against  the  logic 
and  effect  of  the  facts  and  circumstances  presented  in  support  of 
the  application,  or  against  the  reasonable,  probable,  and  natural 
deductions  to  be  drawn  from  the  facts  and  circumstances  is  an  abuse 
of  the  discretion  of  the  court.37 

§  267.     Grounds — Disqualification  of  judge 

The  statutes  relative  to  a  change  of  venue  because  of  the  bias  or 
prejudice  of  the  judge,  are  not  mandatory  and  do  not  require  a 
change  upon  any  showing,  but  the  court  is  vested  with  a  judicial 
discretion  in  granting  or  refusing  the  same.38 

as  Rev.  Laws  1910,  §  4680. 

seHorton  v.  Haines,  102  P.  121,  23  Okl.  878;  Hanson  v.  Hanson,  122  P. 
100,  86  Kan.  622. 

37  Richardson  v.  Augustine,  49  P.  930,  5  Okl.  667. 

Under  Comp.  Laws  1909,  §§  542-544,  the  court  has  discretion  to  transfer 
a  civil  action  from  one  county  to  another.  Simpkins  v.  Parsons,  50  Okl.  786, 
151  P.  588. 

ss  state  v.  Brown,  103  P.  762,  24  Okl.  433. 

(156) 


Art.  2)  CHANGE  OP  VENUE  §§  267-268 

An  apprehension  of  a  party  that  a  judge  is  prejudiced  against 
him  is  not  enough  to  require  a  change  of  venue,  but  it  must  satis- 
factorily appear  that  prejudice  in  fact  exists.89 

An  affidavit  alleging  prejudice  in  the  county,  that  the  judge  was 
biased,  and  that  the  applicant  had  a  suit  pending  against  the  judge, 
was  insufficient  to  compel  a  change  of  venue.40 

Where  it  appears  that  the  judge  is  interested  in  the  subject-mat- 
ter or  is  otherwise  disqualified,  a  change  of  venue  is  not  a  matter 
of  discretion  of  the  court,  but  a  right  in  the  party  applying  there- 
for.41 

It  is  error  not  to  grant  a  change  of  a  cause,  in  which,  on  a  former 
trial,  the  presiding  judge  had  been  a  material  witness,42  or  of  coun- 
sel in  the  matter.48 

§  268.     Local  prejudice 

A  change  of  venue  should  be  granted,  where  it  appears  that  de- 
fendant cannot  have  a  fair  trial  by  reason  of  local  prejudice.44 

A  party  in  a  civil  suit,  not  triable  by  a  jury,  is  not  entitled  to  a 
change  of  venue  on  account  of  local  prejifdice  of  the  citizens.45 


89  In  re  Smith,  85  P.  584,  73  Kan.  743. 

A  showing  that  a  judge  is  a  particular  friend  of  the  plaintiff,  and  might  be 
unconsciously  prejudiced  against  the  defendant,  is  not  sufficient  to  author- 
ize a  change  of  venue.  Isenhart  v.  Hazen,  63  P.  451,  10  Kan.  App.  577. 

40  Hanson  v.  Kendt,  146  P.  1190,  94  Kan.  310. 

41  Jones  v.  American  Cent.  Ins.  Co.,  109  P.  1077,  83  Kan.  44. 

42  Burlington  Ins.  Ob.  v.  McLeod,  19  P.  354,  40  Kan.  54. 

It  is  proper  to  grant  a  change  of  venue  upon  proof,  by  affidavit,  undisput- 
ed, that  the  judge  is  a  material  witness  for  the  party  moving  for  such  change, 
and  that  his  evidence  is  material.  Spencer  v.  Iowa  Mortg.  Co.,  50  P.  1094, 
6  Kan.  App.  378. 

43  City,  of  Leavenworth  v.  Green  River  Asphalt  Co.,  165  P.  824,  101  Kan.  82. 
4*  By  the  showing  made  by  defendants  in  support  of  an  application  for  a 

change  of  venue,  it  appeared  that  the  action  was  one  of  30  brought  to  charge 
defendants  with  liability  to  depositors  of  a  bank  located  in  the  county,  by 
failure  of  which  some  200  depositors  had  suffered  loss;  that  11  of  the  ac- 
tions had  been  tried  in  the  county  in  which  some  100  persons  had  been  called 
as  jurors  and  a  large  number  as.  witnesses ;  that  the  failure  created  great 
excitement  throughout  the  county,  and  had  been  investigated  by  two  grand 
juries ;  and  that  defendants  were  then  under  indictment,  charged  with  crim- 
inal conduct  in  connection  therewith.  Held,  that  a  denial  of  the  motion  was 
an  abuse  of  discretion.  Richardson  v.  Augustine,  49  P.  930,  5  Okl.  667. 
45  Dean  v.  Stone,  35  P.  578,  2  Okl.  13. 

(157) 


§  269  VENUE  (Ch.  4 

§  269.     Application 

An  application  for  change  of  venue  may  be  presented  at  any  time 
before  trial.46 

Where  issues  of  fact  have  not  been  made  up,  an  application  for  a 
change  of  venue  on  the  sole  ground  that  the  district  judge  will 
necessarily  be  a  material  witness  for  plaintiff,  is  properly  overruled, 
as  premature.47 

The  application  must  state  the  facts  on  which  it  is  based,  and  not 
conclusions.48 

Where  a  party  to  a  civil  suit  applies  for  a  change  of  venue,  and 
the  affidavit  alleges  that  the  judge  is  a  material  witness  in  his  be- 
half, that  he  intends  to  procure  his  presence  as  such  if  a  change  is 
granted,  the  granting  a  change  by  the  judge,  based  on  such  affidavit 
and  his  own  personal  knowledge,  is  not  error.49 

An  affidavit  containing  a  naked  declaration  and  conclusion  that 
the  judge  is  prejudiced  is  insufficient.50 


46  Maharry  v.  Maharry,  47  P.  1051,  5  Old.  371. 

The  regular  judge  of  the  district  court  having  been  of  counsel  in  several 
cases,  and  therefore  disqualified  to  sit  in  the  trial  thereof,  on  motion  of  a 
member  of  the  bar  a  pro  tern,  judge  was  elected.  Neither  counsel  nor  client 
in  this  case  appear  by  the  record  to  have  participated  in  such  election,  or  to 
have  been  present  or  consented  thereto.  Held,  that  an  application  for  a' 
change  of  the  place  of  trial  to  another  district  was  not  too  late  when  made  at 
the  time  the  case  was  called  for  trial  by  the  pro  tern,  judge.  Hegwer  v.  Kiff, 
3  P.  303,  31  Kan.  636. 

Where  the  judge  of  the  district  court  has  been  of  counsel  in  a  case,  a  party 
has  the  right  to  demand  a  change  to  another  district  at  any  time  before  the 
trial,  if  the  issues  have  already  been  made  up,  and  up  to  the  time  of  judg- 
ment where  no  issues  have  been  made  up ;  and  in  such  case  he  may  demand 
a  change  to  have  the  issues  made  up,  and  get  a  trial  thereon.  Commission- 
ers of  Sumner  County  v.  Wellington  Tp.,  17  P.  787,  39  Kan.  137. 

47  Carver  v.  Greason,  101  Kan.  639,  168  P.  869. 

*  s  Maharry  v.  Maharry,  47  P.  1051,  5  Okl.  371;  Horton  v.  Haines,  102  P. 
121,  23  Okl.  878. 

The  facts  and  circumstances  by  which  it  shall  be  made  to  appear  to  the 
court  that  a  fair  and  impartial  trial  cannot  be  had  must  be  shown  in  the 
affidavits  in  support  of  the  application.  Richardson  v.  Augustine,  49  P.  930, 
5  Okl.  667. 

4»  Gray  v.  Crockett,  12  P.  129,  35  Kan.  686,  denying  rehearing,  10  P.  452, 
35  Kan.  66. 

so  Griggs  v.  Corson,  81  P.  471,  71  Kan.  884. 

(158) 


Art.  2)  CHANGE  OF  VENUE  §§  269-270 

When  based  solely  on  the  affidavit  of  defendant's  agent  that  it 
was  his  belief  that  defendant  could  not  have  a  fair  and  impartial 
trial,  it  is  properly  denied.51 

§  270.     Hearing  and  order 

A  motion  for  change  of  venue  on  the  ground  that  the  judge  is 
prejudiced  is  to  be  determined  by  the  judge,  in  view  of  his  own 
knowledge.52 

It  is  not  error  for  the  trial  court  to  postpone  its  determination  of 
an  application  for  a  change  of  venue  until  after  the  jury  have  been 
impaneled  for  the  trial  of  the  causes,  but  in  determining  whether  a 
fair  trial  can  be  had  the  court  cannot  take  into  consideration  the  tes- 
timony of  the  jurors  upon  their  voir  dire  examination.53 

After  allowing  an  application  for  a  change  of  venue,  the  court 
may,  at  the  same  term,  and  before  the  papers  or  any  transcript  of 
them  are  transmitted,  vacate  the  order  for  the  purpose  of  allowing 
the  case  to  be  tried  before  a  judge  pro  tern.54 

It  is  not  sufficient  ground  for  refusal  of  an  application  for  a 
change  of  venue  in  a  suit  for  divorce  that^the  applicant  has  failed 
to  comply  with  an  order  of  the  court  to  pay  alimony  pending  the 
suit.55 

si  McCormick  Harvesting  Mach.  Co.  v.  Hayes,  53  P.  70,  7  Kan.  App.  141. 

When  an  affidavit  for  a  change  of  venue  is  general  in  its  terms,  and  the 
judge  has  personal  knowledge  that  he  is  disqualified  to  sit,  a  change  of 
venue  ordered  by  him  upon  the  affidavit,  and  his  own  personal  knowledge 
that  he  is  so  disqualified,  is  not  erroneous.  Gray  v.  Crockett,  10  P.  452,  35 
Kan.  66,  rehearing  denied,  12  P.  129,  35  Kan.  686.  Where  a  party  makes  an 
application  for  a  change  of  venue,  and  files  an  affidavit  in  support  thereof, 
upon  the  ground  that  he  is  advised  by  his  attorney  that  the  judge  is  a  ma- 
terial witness  in  his  behalf,  that  he  believes  such  advice  to  be  true,  and  de- 
sires the  evidence  of  the  judge  at  the  trial,  and  intends  to  procure  the  same 
if  a  change  of  venue  is  granted,  and  the  court  upon  such  application,  affida- 
vit, and  its  own  personal  knowledge,  transfers  the  case  to  another  district 
for  trial,  the  order  is  not  erroneous ;  but  if  the  court,  upon  such  affidavit,  so 
general  in  its  terms,  had  overruled  the  application,  the  Supreme  Court  would 
not  disturb  the  ruling.  Id. 

52  Miller  v.  Kerr,  146  P.  1159,  94  Kan.  545. 

ss  Richardson  v.  Augustine,  49  P.  930,  5  Okl.  667. 

5*  Mudge  v.  Hull,  43  P.  242,  56  Kan.  314. 

An  order  transferring  a  civil  action  from  one  county  to  another,  may  be 
vacated  during  the  term  at  which  it  was  made,  if  the  court  to  which  the 
cause  is  transferred  has  not  acquired  jurisdiction.  Simpkins  v.  Parsons,  50 
Okl.  786,  151  P.  588.  If  a  court  vacates  an  order  transferring  the  cause  to 

55  Maharry  v.  Maharry,  47  P.  1051,  5  Okl.  371. 

(159) 


§§  271-272  VENUE  (Ch.4 

§  271.     Waiver 

Where  a  party  consents  to  a  case  being  sent  to  a  referee  after  his 
motion  for  a  change  of  venue  has  been  overruled,  he  waives  the  er- 
ror in  the  ruling  on  the  motion.56 

Where  an  application  for  change  of  venue  for  disqualification  of 
the  district  judge  is  erroneously  overruled,  applicant  does  not  waive 
the  error  by  neglecting  to  object  to  going  to  trial  when  the  case  is 
reached  at  the  next  succeeding  term  of  court,  nor  does  a  stipulation 
that  a  case  shall  be  submitted  to  the  court  and  jury  that  tried  a 
companion  case  upon  the  same  evidence  and  instructions,  verdict 
to  be  returned  and  judgment  rendered  the  same  as  if  all  the  steps 
of  a  trial  had  been  taken,  waive  an  error  previously  committed  in 
denying  a  change  of  venue  for  disqualification  of  the  judge.57  The 
right  to  a  change  of  venue  may  be  waived  by  failure  to  claim  and 
urge  same.58 

§  272.     Proceedings  after  change 

Where  a  cause  is  transferred  on  change  of  venue,  the  court  does 
not  acquire  jurisdiction  until  the  papers  and  records  are  received 
and  entered  upon  its  docket;59  but  the  court  may  proceed  to  the 


another  court  at  the  same  term  before  the  papers  are  transferred  and  dock- 
eted, it  retains  jurisdiction  to  render  judgment.  Id. 

se  Isenhart  v.  Hazen,  63  P.  451,  10  Kan.  App.  577. 

5T  Jones  v.  Williamsburg  City  Fire  Ins.  Co.,  112  P.  826,  83  Kan.  682,  judg- 
ment affirmed  on  rehearing  116  P.  484,  85  Kan.  235. 

ss  On  an  application  for  a  change  of  venue,  the  files  of  the  case  were  trans- 
mitted to  the  district  court  of  another  county,  where  both  parties  appeared 
and  proceeded  to  trial  without  objection.  After  judgment  had  been  rendered, 
and  the  same  reversed  on  a  proceeding  in  error,  objection  to  the  jurisdiction 
was  made  because  no  formal  order  changing  "the  venue  had  been  made  and 
entered.  Held,  that  any  irregularity  in  transferring  the  case  had  been  waiv- 
ed. City  of  Garden  City  v.  Heller,  60  P.  1060,  61  Kan.  767. 

A  motion  made  by  defendant  for  a  change  of  venue  on  the  grounds  of  the 
disqualification  of  the  regular  judge  and  local  prejudice  was  overruled  as  to 
the  latter  ground.  The  judge  of  another  district  was  called  in,  who  presided 
at  a  trial,  resulting  in  a  disagreement  of  the  jury.  Thereafter  a  pro  tern, 
judge  was  chosen,  and  a  second  trial  had.  There  was  no  objection  from  the 
defendant  at  either  trial  to  the  jurisdiction  of  the  court,  or  the  authority  of 
the  judge  to  sit.  Held,  that  the  claim  of  right  to  a.  "change  of  venue  was 
waived.  Missouri  Pac.  Ry.  Co.  v.  Preston,  63  P.  444,  judgment  affirmed  66 
P.  1050,  63  Kan.  819. 

5»  Simpkins  v.  Parsons,  50  Okl.  786,  151  P.  588, 

(160) 


-  }  ss- 


Art.  2)  CHANGE  OP  VENUE  §§  272-273 

trial  of  the  cause  on  a  true  transcript  of  the  proceedings,  and  with- 
out the  original  files.60 

A  court  to  which  the  cause  is  transferred  acquires  jurisdiction  co- 
extensive with  that  of  the  court  from  which  the  venue  was  re- 
moved, and  can  render  any  judgment  which  might  have  been  ren- 
dered by  the  other  court.61  It  has  jurisdiction  to  determine  the 
validity  of  the  costs  taxed  in  both  counties,62  and  on  proper  show- 
ing may  correct  the  records  transferred.63 

§  273.    Form 

AFFIDAVIT  FOR  CHANGS  OF  VENUS 

(Caption.) 

State  of  Oklahoma, 

County  of  - 

A.  B.,  of  lawful  age,  being  first  duly  sworn,  upon  oath,  says: 
That  he  is  the  defendant  above  named;  that  he  is  a  resident  of 

said county ;  that  he  believes  that  he  cannot  have  a  fair  and 

impartial  trial  of  his  said  cause  in  said  county  of ,  for  the 

reason  that  there  exists  so  great  a  prejudice* against  him  therein  (or 
state  other  reasons  which  exist)  ;  that  the  belief  as  to  such  preju- 
dice is  based  upon  the  following  facts  and  circumstances,  to  wit: 
(Setting  same  forth  fully.) 

Wherefore  said  defendant  prays  that  he  may  be  granted  a  change 

of  venue  of  this  cause  to county,  or  to  some  other  county 

where  such  prejudice  does  not  exist. 

,  Attorneys  for  Defendant. 

«o  Wichita  &  W.  R.  Co.  v.  Kuhn,  16  P.  75,  38  Kan.  104,  judgment  reversed 
on  rehearing  17  P.  322,  38  Kan.  675. 

ei  Hazen  v.  Webb,  68  P.  1096,  65  Kan.  38,  93  Am.  St.  Rep.  276. 

62  Asbell  v.  Aldrich,  147  P.  1126,  95  Kan.  313. 

63  Where  an  execution  on  a  judgment  of  the  district  court  is  enjoined  in 
the  same  action,  and,  pending  a  motion  to  dissolve,  all  the  proceedings  are 
transferred  by  change  of  venue  to  the  district  court  of  another  county,  the 
court  to  which  the  cause  is  transferred  can  on  satisfactory  proof  direct  that 
a  clerical  omission  in  the  entry  of  judgment  be  corrected.     United  Zinc  & 
Chemical  Co.  v.  Morrison,  92  P.  1114,  76  Kan.  799.    A  clerical  error  in  the 
entry  of  a  judgment  may  be  corrected  by  certified  copy  of  the  journal  entry 
of  the  trial,  certified  copies  of  judgment  docket  showing  an  abstract  of  the 
judgment  entered  by  the  clerk,  and  copies  of  the  memoranda  of  the  trial 
from  the  judge's  trial  docket.    Id. 

HON.PL.&  PEAC.— 11  (161) 


. 


§§    274-275  REMEDIES  AND  BIGHTS  (Ch.  5 


CHAPTER  V 

REMEDIES  AND  RIGHTS 

Sections 

274-295.    Article  I. — In  general. 

296-298-    Article  II. — Election  of  remedies. 


ARTICLE  I 

IN  GENERAL 

Sections 

274.  Remedies. 

275.  Cumulative  remedy. 

276.  Actions  and  special  proceedings. 

277.  Distinctions  abolished. 

278.  Determination  of  character. 
279-  Common-law  actions. 

280.  Tort  and  contract. 

281.  Illegal  transactions. 

282.  Injury  without  liability. 

283.  Tenders. 

284.  Right  of  action — Warrantee — Costs  and  expenses. 

285.  .Action  on  surveyor's  bond. 

286.  Surety  against  principal. 

287.  Money  received. 

288.  Conditions  precedent — Warranty. 

289.  Death  pending  action. 

290.  Claim  against  estate. 

291.  Usury. 

292.  Claim   against   municipality. 

293.  Offer — Demand — Notice. 

294.  Taxes. 

295.  Insurance. 


§  274.     Remedies 

"Remedies  in  the  courts  of  justice  are  divided  into:  First.  Ac- 
tions. Second.  Special  proceedings."  1 

§  275.     Cumulative  remedy 

A  cumulative  remedy  is  one  created  by  statute  in  addition  to 
one  which  still  remains  in  force,  and  when  a  statute  gives  a  new 
remedy,  and  contains  no  negative,  express  or  implied,  of  the  old 


Rev.  Laws  1910,  §  4643. 
(162) 


Art.  1)  IN  GENERAL  §§  276-277 

remedy,  the  new  one  provided  is  cumulative  and  the  party  may 
elect  between  the  two.2 

§  276.     Actions  and  special  proceedings 

"An  action  is  an  ordinary  proceeding  in  a  court  of  justice  by 
which  a  party  prosecutes  another  party  for  the  enforcement  or  pro- 
tection of  a  right,  the  redress  or  prevention  of  a  wrong,  or  the  pun- 
ishment of  a  public  offense."  3 

"Every  other  remedy  is  a  special  proceeding."  4 
"Actions  are  of  two  kinds :    First,  civil ;  second,  criminal."  B 
"A  criminal  action  is  one  prosecuted  by  the  State  as  a  party, 
against  a  person  charged  with  a  public  offense,  for  the  punishment 
thereof."  6 

"Every  other  is  a  civil  action."  7 

"Where  the  violation  of  a  right  admits  of  both  a  civil  and  crimi- 
nal remedy,  the  right  to  prosecute  the  one  is  not  merged  in  the 
other."  8 

§  277.     Distinctions  abolished  *• 

"The  distinction  between  actions  at  law  and  suits  in  equity,  and 
the  forms  of  all  such  actions  and  suits  heretofore  existing,  are  abol- 
ished; and  in  their  place  there  shall  be,  hereafter,  but  one  form 
of  action,  which  shall  be  called  a  civil  action."  9 

However,  the  essential  and  inherent  principles  of  legal  and  equi- 
table rights  and  remedies  remain  as  before ;  the  statute  not  being  in- 
tended to  alter  or  directly  affect  the  primary  rights  and  liabilities 
created  or  recognized  eitheHn  law  or  equity.10 


2  Bowles  v.  Neely,  115  P.  344,  28  Okl.  556. 

s  Rev.  Laws  1910,  §  4644. 

*  Rev.  Laws  1910,  §  4645. 

s  Rev.  Laws  1910,  §  4646. 

e  Rev.  Laws  1910,  §  4647. 

7  Rev.  Laws  1910,  §  4648. 

s  Rev.  Laws  1910,  §  4649. 

Only  three  kinds  of  actions  may  be  had  In  Oklahoma,  namely,  a  civil  ac- 
tion, criminal  action,  and  special  proceeding ;  the  distinction  between  chan- 
cery and  law  jurisdiction  never  having  obtained.  State  v.  Huston,  113  P.  190, 
27  Okl.  606,  34  L.  R.  A.  (N.  S.)  380. 

a  Rev.  Laws  1910,  §  4650. 

10  Mathews  v.  Sniggs,  75  Okl.  108,  182  P.  703. 

Though  the  Legislature  has  abolished  the  distinction  between  actions  at 
law  and  suits  in  equity,  yet  it  was  not  thereby  intended  to  change  the  nature 

(163) 


§§    277-279  REMEDIES  AND  RIGHTS  (Ch.  5 

The  common-law  rules  of  pleading,  and  all  distinctions  in  form 
between  actions  at  law  and  suits  in  equity,  are  abolished,  leaving 
only  a  civil  action,  consisting  of  a  statement  of  the  facts,  in  plain 
language,  the  redress  sought,  and  the  party  liable.11  It  is  error  to 
compe-1  plaintiff  to  elect  whether  he  will  proceed  in  equity  or  at 
law.12 

§  278.     Determination  of  character 

The  character  of  an  action  is  to  be  determined  by  the  nature-  of 
issue  made  by  the  pleadings  and  the  rights  and  remedies  of  the 
parties,  and  not  alone  by  the  form  in  which  the  action  was  brought 
or  by  the  prayer  for  relief,  which,  in  that  respect,  is  no  material 
part  of  the  pleading.  Strictly  speaking,  "remedy"  given  is  no  part 
of  the  action,  but  is  the  result  thereof,  the  object  for  which  the  ac- 
tion is  presented,  the  end  to  which  all  the  litigation  is  directed.13 

§  279.     Common-law  actions 

Causes  of  action  that  existed  under  the  common-law  forms,  which 
have  not  been  expressly  abolished,  still  exist  under  the  name  of 
"civil  actions";  and  a  plaintiff,  under  the  statute,  must  allege  and 
prove  every  fact  that  he  was  required  .to  allege  and  prove  at  com- 
mon law.14 

"Real  actions,"  included  in  common-law  actions,  were  those 
brought  for  the  specific  recovery  of  lands;  some  being. founded  on 
the  seizure  or  possession,  and  some  on  the  property  or  right.  "Per- 
sonal actions,"  included  in  common-law  actions,  were  those  begun 

of  the  remedies  generally  obtaining  where  courts  of  law  and  chancery  are 
separated.  Olson  v.  Thompson,  48  P.  184,  6  Okl.  74. 

While  the  distinction  between  law  and  equity  is  abplished,  equitable  relief 
may  be  awarded  under  proper  allegations  by  means  of  an  equitable  defense 
to  defeat  plaintiff's  legal  cause  of  action.  Farmers'  &  Merchants'  Nat.  Bank 
v.  Hoyt,  120  P.  264,  29  Okl.  772. 

Notwithstanding  the  provisions  of  the  Civil  Code  abolishing  all  distinc- 
tions between  actions  at  law  and  suits  in  equity,  and  the  common-law  forms 
of  actions  and  suits,  the  rules  of  law  which  control  the  manner  of  enforcing 
a  cause  of  action  depend  on  the  nature  of  the  cause  sought  to  be  enforced, 
and  until  such  nature  is  determined  the  rules  of  law  governing  the  case  are 
impossible  of  ascertainment.  Carbondale  Inv.  Co.  v.  Burdick,  72  P.  781,  67 
Kan.  329.  > 

11  St.  Louis  &  S.  F.  B.  Co.  v.  Yount,  30  Okl.  371, 120  P.  627. 

12  Brawley  v.  Smith,  54  P.  804,  8  Kan.  App.  411. 
is  Mathews  v.  Sniggs,  75  Okl.  108,  182  P.  703. 

i*  Phelps,  Dodge  &  Palmer  Co.  v.  Halsell,  65  P.  340, 11  Okl.  i. 

(164) 


Art.  1)  IN  GENERAL  §§  279-280 

for  the  specific  recovery  of  goods  and  chattels,  or  for  damages  or 
other  redress  for  breach  of  contract  or  other  injury  of  whatever 
description;  the  specific  recovery  of  lands  only  excepted.  "Mixed 
actions,"  included  in  common-law  actions,,  were  such  as  appertain- 
ed in  some  degree  to  both  real  and  personal  actions,  and  therefore 
reducible  to  neither  of  them;  being  brought  both  for  the  specific 
recovery  of  lands,  and  for  damages  for  injuries  to  such  property.15 
Where  a  cause  of  action  which  does  not  exist  at  common  law 
is  created  by  the  statute  of  another  state  or  territory,  such  cause 
of  action,  when  presented  to  the  courts,  will  be  held  to  consist,  not 
merely  of  the  right  given,  but  also  of  all  the  conditions  and  limita- 
tions attached  thereto  by  the  statute  of  the  place  where  it  was 
created.18 

§  280.    Tort  and  contract 

The  statute  does  not  abolish  the  distinction  between  an  action  for 
tort  and  an  action  on  contract.17  Whether  an  action  is  ex  contractu 

or  ex  delicto  is  to  be  determined  by  the  pleadings.18 

» 

is  Ma  thews  v.  Sniggs,  75  Okl.  108,  182  P.  703. 

IB  Swisher  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  90  P.  812,  76  Kan.  97. 

IT  Robinson  v.  Oklahoma  Fire  Ins.  Co.,  55  Okl.  52,  155  P.  202. 

is  Union  Pac.  Ry.  Co.  v.  Shook,  44  P.  685,  3  Kan.  App.  710;  Atchison,  T. 
&  S.  F.  R.  Co.  v.  Long,  47  P.  993,  5  Kan.  App.  644. 

Actions  ex  delicto. — Petition  claiming  title  to  purchase  money  for  land  sold 
by  plaintiff's  agent  and  deposited  in  defendant's  bank  held  to  show  that  ac- 
tion was  for  relief  on  ground  of  fraud.  Fix  v.  Rose,  64  Old.  113,  166  P.  145. 

A  passenger's  action  for  injuries  from  collision  with  a  switch  engine  held 
an  action  sounding  in  tort.  Martin  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  46  Okl. 
169,  148  P.  711. 

Where  the  effects  of  a  passenger  which  are  damaged  by  the  negligence  of 
the  carrier  are  accepted  and  retained  by  the  passenger,  an  action  for  the 
damages  should  be  in  tort,  and  not  on  account.  Atchison,  T.  &  S.  F.  R.  Co. 
v.  Wilkinson,  39  P.  1043,  55  Kan.  83. 

Action  to  recover  a  part  of  the  consideration  of  a  contract  alleged  to  have 
been  paid  by  reason  of  the  fraudulent  representations  of  defendants  as  to 
the  amount  due  thereon  is  an  action  for  relief  on  the  ground  of  fraud,  and 
not  an  action  on  the  contract  Ottawa  Condensing  Co.  v.  Dawkins,  120  P. 
356,  86  Kan.  312. 

A  petition  alleging  that  defendant  railroad  company,  by  its  agents  and 
servants,  after  having  sold  plaintiff  a  ticket,  refused  to  allow  him  to  remain 
on  the  train  without  payment  of  additional  fare,  and  wrongfully,  forcibly, 
and  unlawfully  ejected  him,  to  his  damage  in  a  certain  sum,  declares  on  .a 
cause  of  action  ex  delicto.  Atchison,  T.  &  S.  F.  R.  Co.  v.  Long,  47  P.  993, 
5  Kan.  App.  644. 

Actions  ex  contractu. — An  action  by  a  grand  lodge  against  a  bank  to  recov- 

(165) 


§    280  REMEDIES  AND   RIGHTS  (Ch.  5 

Where  the  relation  between  the  parties  to  an  action  has  been 
established  by  contract,  express  or  implied,  if  the  law  imposes  cer- 
tain duties  because  of  the  existence  of  the  relation,  a  violation  of  the 
contract  obligations  may  be  waived  and  an  action  in  tort  brought 
for  any  violation  of  such  duties.19 

Where  one  person  wrongs  another  for  his  own  benefit,  the  la\V( 
may  imply  a  contract  by  the  wrongdoer  to  pay  to  the  party  injured 
the  full  value  of  the  benefits  resulting.20 

A  person  injured  from  a  neglected  duty  imposed  by  law,  by  rea- 

er  the  amount  of  an  overdraft  by  a  defaulting  treasurer  of  the  grand  lodge  is 
an  action  on  implied  contract  and  not  in  tort  for  relief  on  the  ground  of 
fraud.  Washbou  v.  Linscott  State  Bank,  125  P.  17,  87  Kan.  698. 

A  petition  stating  a  contract  of  carriage  and  charging  a  violation  of  duty, 
in  an  action  against  a  carrier,  states  a  cause  of  action  in  tort  rather  than 
contract.  Ft.  Smith  &  W.  R.  Co.  v.  Ford,  126  P.  745,  34  Okl.  575,  41  L.  R.  A. 
(N.  S.)  745.  Where  an  action  against  a  carrier  for  damages  sounds  in  tort, 
the  allegation  of  a  contract  of  carriage  is  a  mere  inducement  to  show  the 
right  to  sue  as  a  passenger.  Id.  Where  a  passenger  is  entitled  to  damages 
for  breach  of  the  carrier's  duty,  the  remedy  is  in  tort.  Id.  In  a  suit  against 
a  common  carrier  for  breach  of  duty  in  carrying  passenger  beyond  his  sta- 
tion, the  action  is  one  in  tort,  unless  a  special  contract  clearly  appears.  Id. 

It  was  agreed  that  an  agent  should  receive  a  stated  commission  for  the 
sale  of  machinery ;  that  commissions  should  be  paid  on  cash  payments  only ; 
and  that  no  commission  was  to  be  paid  or  retained  on  sales  made  to  irre- 
sponsible parties,  nor  where  the  debts  for  which  the  machinery  was  sold 
were  uncollectible.  The  agent  under  this  contract  sold  machinery  which  was 
to  be  paid  for  at  a  future  time,  and  represented  that  the  notes  taken  were 
good,  and  would  be  paid  at  maturity.  The  principal,  relying  on  these  state- 
ments, paid  the  commission  in  full,  and  afterwards  it  was  found  that  the 
purchasers  who  gave  the  notes  were  insolvent,  and  only  a  small  part  of  the 
purchase  price  was  paid.  Held,  that  an  action  brought  by  the  principal  to 
recover  the  difference  between  the  commission  which  was  paid  and  the 
amount  actually  earned  by  the  agent  under  the  terms  of  the  contract  was  an 
action  arising  on  contract,  and  was  not  barred  by  the  two-years  statute  of 
limitations.  Frick  &  Co.  v.  Lamed,  32  P.  383,  50  Kan.  776. 

Where  a  mortgagee  sends  through  a  bank  part  of  the  money  loaned  to  a 
contractor,  to  be  paid  by  the  receiving  bank  to  a  creditor  having  a  claim 
against  the  property  mortgaged,  and  the  receiving  bank  applies  it  to  a  debt 
owing  it  by  the  contractor,  an  action  for  such  misapplication  is  an  action  on 
an  implied  contract,  and  not  in  tort.  Winfleld  Nat.  Bank  v.  Railroad  Loan 
&  Savings  Ass'n,  81  P.  202,  71  Kan.  584. 

i»  Hobbs  v.  Smith,  115  P.  347,  27  Okl.  830,  34  L.  R.  A.  (N.  S.)  697. 

In  action  for  alleged  wrongful  taking  of  valuable  fossil  from  plaintiff's  land 
and  converting  it,  petition  held  to  show  waiver  of  tort  and  reliance  on  im- 
plied promise  to  pay  value  of  property.  Garrity  v.  State  Board  of  Adminis- 
tration of  Educational  Institutions,  162  P.  1167,  99  Kan.  695. 

20  Weems  v.  Melton,  47  Okl.  "706,  150  P.  720. 

An  owner  whose  property  has  been  converted  to  the  use  of  another  may 

(166) 


Art.  1)  IN  GENERAL  §§  280-281 

son  of  a  relation  created  by  contract,  may  either  sue  on  the  con- 
tract or  bring  an  action  ex  delicto.21 

In  an  action  of  tort  by  a  passenger  for  a  wrongful  expulsion 
from  a  train  before  he  reached  the  station  for  which  he  had  pur- 
chased a  ticket,  he  cannot  recover  as  for  a  breach  of  contract  to 
convey  him  to  the  station ; 22  but  where  he  has  complied  with  the 
rules  of  procedure  as  to  the  form  of  action  and  his  pleading,  he 
cannot  be  precluded  from  recovering  for  humiliation  because  of  a 
doubt  as  to  whether  his  suit  was  ex  contractu  or  ex  delicto.23 

§  281.     Illegal  transactions 

One  cannot  maintain  an  action  based  on  his  own  turpitude, 24  or 
to  aid  in  effecting  a  wrong  or  fraud  upon  the  defendant.25 
As  a  general  rule,  an  action  which  grows  out  of  and  is  founded 

waive  the  tort,  and  bring  his  action  on  implied  contract  for  the  value  of  the 
property.  Altman  v.  Phillips  County  Bank,  122  P.  874,  86  Kan.  930. 

Where  a  person  takes  and  sells  the  property  of  another,  the  owner  may 
elect  to  waive  the  tort  and  sue  upon  the  implied  contract  for  the  value  of  the 
same ;  and  whether  he  has  so  elected,  and  the  nature  of  the  action,  are  to 
be  determined  by  the  court  from  the  pleadings.  Smith  v.  McCarthy,  18  P.  204, 
39  Kan.  308. 

Where  a  bank  clerk  appropriates  the  money  of  a  bank,  it  may  waive  the 
tort  and  sue  on  an  implied  contract  that  the  clerk  would  be  honest  and  faith- 
ful. Lipscomb  v.  Citizens'  Bank  of  Galena,  71  P.  583,  66  Kan.  243. 

Where  a  commission  merchant  receives  mortgaged  cattle  for  sale  without 
the  knowledge  or  consent  of  the  mortgagee  and  in  violation  of  the  terms  of 
the  mortgage,  and  pays  the  proceeds,  less  his  commission,  to  the  consignor, 
without  notice  of  the  mortgage,  he  does  not  derive  such  a  benefit  from  the 
transaction  as  to  authorize  the  mortgagee  to  waive  the  tort  and  recover  on 
an  implied  contract.  Greer  v.  Newland,  78  P.  835,  70  Kan.  315,  70  L.  R.  A. 
554,  109  Am.  St.  Rep.  424,  judgment,  77  P.  98,  70  Kan.  310,  70  L.  R.  A.  554, 
109  Am.  St.  Rep.  424,  reversed  on  rehearing. 

21  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Harrington,  44  Okl.  41,  143  P.  325. 

22  Noble  v.  Atchison,  T.  &  S.  F.  R.  Co.,  46  P.  483,  4  Okl.  534. 

23  St.  Louis  &  S.  F,  R.  Co.  v.  Yount,  30  Okl.  371,  120  P.  627. 

2*  A  litigant  cannot  found  his  action  on  his  own  violation  of  the  law. 
Friedman  &  Co.  v.  State,  131  P.  529,  37  Okl.  164. 

Where  the  owner  of  land  deeded  it  to  R.  who  did  not  record  his  deed,  and 
afterwards  the  holder  of  a  void  tax  deed  quieted  his  title  against  a  defendant 
of  the  same  name  as  the  grantee,  and  such  title  was  purchased  for  $800  by 
defendant,  who  improved  the  land,  and  where  by  deceit  C.  then  procured 
from  the  original  owner  a  deed  for  $15,  the  maxim  that  "one  cannot  maintain 

2s  The  bringing  of  an  action  to  recover  personalty,  by  one  having  no  inter- 
est therein  within  Code  Civ.  Proc.  §  25  (Gen.  St.  1909,  §  5618),  or  the  excep- 
tions thereto,  at  the  instance  of  an  outsider  to  aid  him  in  effecting  the  wrong, 
is  a  fraud  on  defendant.  Burdett  v.  Surdez,  146  P.  1025,  94  Kan.  494. 

(167) 


§§    282-285  REMEDIES   AND   EIGHTS  (Ch.  5 

upon  an  illegal  transaction,  where  the  plaintiff  and  defendant  are 
in  equal  guilt,  cannot  be  maintained.26 

§  282.     Injury  without  liability 

A  railway  company  operating  within  the  scope  of  its  power 
has  the  right  to  the  use  of  its  property  and  the  lawful  enjoyment 
thereof ;  and  if,  in  the  enjoyment  of  this  right,  a  loss  occurs  to  an- 
other, it  is  a  wrong  for  which  there  is  no  liability.27 

§  283.     Tenders 

"When  a  tender  of  money  is  alleged  in  any  pleading,  it  shall  not 
be  necessary  to  deposit  the  money  in  court  when  the  pleading  is 
filed,  but  it  shall  be  sufficient  if  the  money  is  deposited  in  court  at 
trial,  or  when  ordered  by  the  court."  28 

§  284.     Right  of  action — Warrantee — Costs  and  expenses 

"If  a  warrantor  or  other  person  bound  by  a  warranty  shall  fail 
to  appear  and  defend  after  due  notice"  as  provided  by  law,  "the 
warrantee  may  defend  the  action  and  recover  in  a  separate  suit  all 
sums  expended  the  same  as  he  might  do  in  the  same  suit."  29 

§  285.    Action  on  surveyor's  bond 

"Any  person  who  may  think  himself  injured  by  the  neglect  or 
misconduct  of  any  county  surveyor,  or  any  of  his  deputies,  may 
institute  suit  on  the  bond  executed  by  such  county  surveyor  and 
his  sureties,  and  in  case  the  party  for  whose  benefit  such  suit  may 
be  brought  shall  obtain  a  judgment  for  any  damage  or  loss  by  him 
sustained,  he  may  sue  out  an  execution  on  such  judgment  as  in 

an  action  based  on  his  own  turpitude"  barred  C.  from  recovering  in  an  ac- 
tion to  eject  defendant.    Chandler  v.  Austin,  132  P.  1004,  90  Kan.  62. 

A  contention  that  a  note  against  decedent  should  not  be  allowed  against 
his  estate  because  it  had  not  been  returned  for  taxation  is  not  meritorious, 
since,  in  order  to  obtain  judgment  on  the  note,  plaintiff  did  not  have  to  claim 
under  any  unlawful  act,  nor  was  the  court  required  to  pass  on  any  violation 
or  attempt  to  -evade  the  law  on  plaintiffs  part.  Brewster  v.  Light,  65  P.  248, 
63  Kan.  882. 

26  Hinnen  v.  Newman,  12  P.  144,  35  Kan.  709. 

Whenever  it  appears  during  the  trial  that  the  cause  of  action  on  which 
plaintiff  relies  arose  out  of  an  unlawful  conspiracy,  the  court  should  imme- 
diately refuse  aid  to  either  party.  Patterson  v.  Imperial  Window  Glass  Co., 
137  P.  955,  91  Kan.  201. 

27  st.  Louis  &  S.  F.  R.  Co.  v.  Burrous,  118  P.  143,  29  Okl.  378. 
2  s  Rev.  Laws  1910,  §  4782. 

2»  Rev.  Laws  1910,  §  1168. 

(168) 


Art.  1)  IN  GENERAL  §§  286~289 

other  cases  and  the  bond  may  be  sued  on  in  like  manner  by  each 
and  every  person  aggrieved."  80 

§  286.    Surety  against  principal 

"A  surety  may  maintain  an  action  against  his  principal,  to  com- 
pel him  to  discharge  the  debt  or  liability  for  which  the  surety  is 
bound,  after  the  same  has  become  due. 

"A  surety  may  maintain  an  action  against  his  principal,  to  ob- 
tain indemnity  against  the  debt  or  liability  for  which  he  is  bound, 
before  it  is  due,  whenever  any  of  the  grounds  exist,  upon  whicli, 
by  the  provisions  of  this  Code,  an  order  may  be  made  for  arrest 
and  bail,  or  for  an  attachment. 

"In  such  action  the  surety  may  obtain  any  of  the  provisional 
remedies  mentioned  in  articles  8,  9  and  10,  upon  the  grounds  and 
in  the  manner  therein  prescribed." 31 

§  287.    Money  received 

Where  one  has  money  of  another  which  he  in  good  conscience 
has  no  right  to  retain,  an  action  will  lie  to  recover  it.82 

§  288.     Conditions  precedent — Warranty 

"In  all  cases  where  an  action  is  brought  against  a  grantee  to 
recover  real  estate  conveyed  to  him  by  warranty  deed,  he  must 
notify  the  grantor  or  person  bound  by  the  warranty  that  such 
suit  has  been  brought,  at  least  twenty  days  before  the  day  of  trial, 
which  notice  shall  be  in  writing  and  shall  request  such  grantor  or 
other  person  to  defend  against  such  action;  and  in  case  of  fail- 
ure to  give  such  notice  there  sjiall  be  no  further  liability  upon  such 
warranty,  except  when  it  is  clearly  shown  that  it  was  impossible 
to  make  service  of  such  notice."  33 

§  289.    Death  pending  action 

"If  an  action  is  pending  against  the  decedent  at  time  of  his 
death,  the  plaintiff  must  in  like  manner  present  his  claim  to  the 
executor  or  administrator,  for  allowance  or  rejection,  authenti- 


so  Rev.  Laws  1910,  §  1727. 

31  Rev.  Laws  1910,  §§  5307,  5308,  5309. 

32  Helm  v.  Mickleson  (Okl.)  170  P.  704;   Allsman  v.  Oklahoma  City,  95  P, 
468,  21  Okl.  142,  16  L.  R.  A.  (N.  S.)  511,  17  Ann.  Gas.  184. 

as  Rev.  Laws  1910,  |  1166. 

(169) 


§§   290-293  REMEDIES  AND   RIGHTS  (Ch.  5 

cated  as  required  in  other  cases;   and  no  recovery  shall  be  had  in 
the  action  unless  proof  be  made  of  the  presentation  required."  3* 

§  290.     Claim  against  estate 

"No  holder  of  any  claim  against  an  estate  shall  maintain  any 
action  thereon,  unless  the  claim  is  first  presented  to  the  executor 
or  administrator."  35 

A  claim  for  a  fund  wrongfully  misappropriated  by  a  guardian 
need  not  be  presented  to  the  administrator  of  the  guardian's  sure- 
ty, before  action  therefor.36 

§  291.    Usury 

Before  any  suit  can  be  brought  to  recover  usurious  interest,  the 
party  bringing  such  suit  must  make  written  demand  for  return 
of  such  usury.37 

§  292.    Claim  against  municipality 

That  a  claim  against  a  city  for  unliquidated  damages  arising 
out  of  a  tort  is  not  itemized,  verified,  and  filed  does  not  prevent  a 
suit  being  maintained  thereon,  but  merely  precludes  the  plaintiff 
from  recovering  costs.38 

Where  a  party  having  sustained  a  personal  injury  for  which  he 
claims  that  a  city  is  liable,  presents  his  bill  therefor  to  the  city 
council  for  allowance,  which  is  by  such  council  disallowed,  he  may 
thereafter  sue  for  and  recover  all  the  damages  sustained,  though 
such  damages  exceeded  the  amount  claimed  in  the  bill.39 

§  293.    Offer — Demand — Notice 

No  failure  to  make  an  offer  of  performance  can  be  insisted  on 
as  a  bar  to  an  action,  where  that  offer  would  have  been  rejected.40 
An  offer  to  restore  or  do  equity  is  necessary  only  when  the  court 


s*  Rev.  Laws  1910,  §  6348. 

35  Rev.  Laws  1910,  §  6346. 

se  Asher  v.  Stull,  61  Okl.  320,  161  P.  808 ;  Donnell  v.  Dansby,  58  Okl.  165, 
159  P.  317.  • 

87  Rev.  Laws  1910,  §  1005. 

s  s  Town  of  Sallisaw  v.  Hitter,  142  P.  391,  42  Okl.  626,  Rev.  Laws  1910, 
§603. 

39  City  of  Oklahoma  City  v.  Welsh,  41  P.  598,  3  Okl.  288. 

40  St.  Louis  &  S.  F.  R.  Co.  v.  Richards,  102  P.  92,  23  Okl.  256,  23  L.  R.  A. 
(N.  S.)  1032. 

(170) 


Art.  1)  IN   GENERAL  §    293 

would  otherwise  be  powerless  to  give  defendant  whatever  relief 
he  may  be  entitled  to  against  plaintiff.41 

No  demand  is  ordinarily  necessary  before  commencing  suit  for 

*iA  minor  Creek  on  attaining  her  majority  may  sue  to  cancel  a  void  deed 
executed  during  her  minority,  without  offering  to  restore  the  consideration, 
where  it  never  reached  her  hands,  or  was  immediately  paid  over  to  one  with 
whom  she  was  illegally  cohabiting,  and  was  never  returned  to  her.  Blake- 
more  v.  Johnson,  103  P.  554,  24  Okl.  544. 

In  a  suit  in  equity  by  a  minor  Creek  freedman  to  cancel  a  deed  executed 
by  her  during  minority,  it  is  unnecessary  to  formally  allege  an  offer  to  do 
equity  by  returning  the  consideration  received  by  her  during  minority.  Ste- 
vens v.  Elliott,  30  Okl.  41,  118  P.  407. 

In  a  suit  in  equity  to  cancel  a  void  deed,  made  by  a  minor  Creek  freedman 
during  minority,  the  court  has  full  power  to  impose  as  a  condition  to  the  can- 
cellation of  such  deed  the  return  of  the  consideration  received,  or  such  part 
thereof  as  the  minor  may  have  in  his  or  her  possession  upon  attaining  ma- 
jority, and  an  offer  to  do  equity  or  return  such  consideration  is  an  unnec- 
essary pleading.  Stevens  v.  Elliott,  30  Okl.  41,  118  P.  407. 

In  a  minor  Creek  freedman  allottee's  action  to  set  aside  a  void  deed,  plain- 
tiff need  not  plead  formal  tender  to  restore  consideration.  McKeever  v. 
Carter,  53  Okl.  360,  157  P.  56. 

A  return  of  the  consideration  held  not  a  necessary  prerequisite  to  the  can- 
cellation of  a  deed  executed  to  Indian  lands  in  violation  of  section  16  of 
the  Supplemental  Creek  Agreement  of  June  30,  1902.  Oates  v.  Freeman,  57 
Okl.  449,  157  P.  74. 

In  action  to  set  aside  void  conveyance  of  lands  of  Indian  minor  allottee,  it 
is  not  necessary  for  plaintiff  to  plead  formal  tender  and  offer  to  return  con- 
sideration as  condition  precedent  to  action.  Bell  v.  Fitzpatrick,  53  Okl.  574, 
157  P.  334.  That  minor  Indian  allottee  in  her  own  name  brought  suit  to  set 
aside  void  conveyance  of  allotted  lands,  executed  after  May  27,  1908,  and 
permitted  suit  to  be  dismissed  with  prejudice,  did  not  bar  subsequent  suit  on 
attaining  majority  to  cancel  deed  and  have  it  removed  as  cloud  on  title.  Id. 
Guardian  of  Indian  minor  allottee  cannot,  by  commencing  action  and  enter- 
ing into  compromise  and  settlement,  divest  title  of  minor  to  lands  or  create 
estoppel  against  allottee  thereafter  asserting  invalidity  of  conveyance.  Id. 

Insured  seeking  to  rescind  contract  substituting  life  insurance  policies  and 
accompanying  loan  agreement  held  not  required  to  offer  compensation  for 
time  he  had  protection  of  policy  issued  under  contract  induced  by  insurer's 
fraud.  Myler  v.  Fidelity  Mut.  Life  Ins.  Co.  of  Philadelphia,  64  Okl.  293,  167 
P.  601. 

In  suit  to  declare  deed  a  mortgage  and  to  enforce  lien,  plaintiff's  failure 
to  tender  reconveyance  of  land  did  not  defeat  relief,  as  court  of  equity,  to 
do  justice  between  the  parties,  might  compel  plaintiff  to  do  equity  before 
granting  him  any  relief.  Huff  v.  Lynde-Bowman-Darby  Co.  (Okl.)  175  P.  250. 

Where  under  invalid  proceedings  in  probate  court  lands  of  minor  citizen  of 
Choctaw  Nation  were  disposed  of,  held  that  minor  was  not  bound  to  return 
consideration  received  in  absence  of  showing  that  she  had  in  her  possession 
any  of  such  consideration.  Bridges  v.  Rea,  64  Okl.  115,  166  P.  416. 

Where  minor  citizen  of  Choctaw  Nation  sues  to  set  aside  void  guardian- 
ship sale  of  his  land  and  alleges  that  he  has  received  no  part  of  considera- 

(171) 


§    294  REMEDIES   AND   RIGHTS  (Ch.  5 

conversion,42  nor  is  it  always  necessary  that  notice  be  given  to 
sureties  on  an  employe's  bond  of  the  employe's  default.43 

§  294.    Taxes 

Where  a  tax  levy  is  void,  tender  of  a  portion  thereof  is  not  a  con- 
dition precedent  to  a  taxpayer's  right  to  enjoin  the  collection  of 
same.44 

tion,  he  need  not  tender  or  pay  back  such  consideration  as  a  prerequisite  to 
maintenance  of  suit.  Winters  v.  Oklahoma  Portland  Cement  Co.  (Okl.)  164 
P.  965. 

An  action  to  recover  entire  purchase  money  when  due  held  not  maintain- 
able, unless  plaintiff  should  offer  to  convey  or  tender  a  deed  on  full  payment. 
Dubois  v.  Andrews,  57  Okl.  227,  152  P.  440. 

Where  it  appears  from  contract  to  sell  land  that  it  was  intention  of  par- 
ties that  payment  of  price  should  precede  delivery  of  deed,  or  time  for 
payment  was  fixed,  and  no  time  for  conveyance,  offer  to  convey  is  not  re- 
quired before  action  for  price.  Sooter  v.  Janes,  57  Okl.  368,  157  P.  282. 

Where  the  vendor  took  notes  for  the  deferred  payments,  and  the  purchaser 
took  possession,  and  the  contract  provided  that,  on  the  purchaser's  default 
the  vendor  should  keep  any  payments  as  liquidated  damages,  the  vendor  was 
not  compelled  to  resort  to  specific  performance  before  enforcing  the  notes. 
Shelton  v.  Wallace,  137  P.  694,  41  Okl.  325. 

Tender  of  deed  is  not  condition  precedent  to  action  to  enforce  vendor's 
lien.  Ames  v.  Milam,  53  Okl.  739,  157  P.  941.  Notice  by  vendor  of  intention 
to  declare  future  payments  due  was  not  essential  prerequisite  to  action  to 
foreclose  vendor's  lien.  Id. 

42  In  a  mortgagee's  action  for  conversion,  against  the  purchaser  of  mort- 
gaged chattels,  demand  and  refusal  need  not  be  proven,  where  the  purchaser 
knew  of  the  mortgagee's  rights  or  convert?':  the  property  to  his  own  use. 
Bank  of  Commerce  of  Ralston  v.  Gaskill,  44  Okl.  728,  145  P.  1131.     An  ab- 
solute sale  by  the  chattel  mortgagor,  to  the  exclusion  of  the  mortgagee, 
works  a  conversion  of  the  chattels  for  which  the  mortgagee  may  sue  with- 
out previous  demand.    Id. 

In  a  suit  for  conversion  of  a  ring  pledged  as  collateral  to  secure  a  no^e, 
no  demand  of  pledgee  for  return  of  the  property  is  necessary  where  the  same 
has  been  sold  by  him  pending  the  right  to  redeem.  Clinton  Nat.  Bank  v. 
McKennon,  110  P.  649,  26  Okl.  835. 

Where  a  sheriff,  under  a  writ  of  attachment,  seized  and  converted  property 
to  the  possession  of  which  a  mortgagee  had  a  prior  right,  no  demand  of  the 
sheriff  for  the  return  of  the  property  was  necessary.  Johnson  v.  Anderson, 
57  P.  513,  60  Kan.  578. 

In  action  for  conversion  of  a  wagon  shipped  by  defendant  carrier,  a  formal 
demand  and  specific  tender  of  the  amount  of  freight  held  unnecessary.  Atchi- 
son,  T.  &  S.  F.  Ky.  Co.  v.  Etherton,  45  Okl.  260,  145  P.  779. 

43  Where  an  agent  for  the  delivery  of  pictures  and  collection  of  the  price 
makes  reports  as  required  by  the  contract  of  agency,  in  which  reports  his 
shortage  appears,  and  where  his  conduct  is  not  inconsistent  with  honesty, 

4*  Eakin  v.  Chapman,  44  Okl.  51,  143  P.  21. 
(172) 


Art.  1)  IN  GENERAL  §§  294-295 

A  party  seeking  equitable  relief  against  an  assessment  must  him- 
self offer  to  do  equity,  and  pay  the  amount  of  taxes  which  the  facts 
show  would  have  properly  been  charged  against  him  under  proper 
assessment.45 

§  295.    Insurance 

The  conditions  precedent  to  suit,  prescribed  in  a  policy  of  insur- 
ance, must  be  complied  with,46  unless  they  be  waived,47  or  become 

his  employer  is  not  required  to  notify  the  sureties  upon  his  bond  to  the  em- 
ployer, conditioned  to  account  for  pictures  and  frames  shipped  to  him  for 
delivery,  of  his  default,  as  a  condition  precedent  to  its  recovery  upon  the 
bond  for  either  the  first  reported  shortage,  or  shortage  subsequent  to  the 
first.  Chicago  Crayon  Co.  v.  Rogers,  30  Okl.  299,  119  P.  630. 
*5  Rogers  v.  Bass  &  Harbour  Co.  (Okl.)  168  P.  212. 

46  Examination. — Refusal  to  comply  with  a  requirement  that  insured  sub- 
mit before  action  to  an  examination  under  oath,  will  preclude  recovery  on 
the  policy.     Connecticut  Fire  Ins.  Co.  of  Hartford,  Conn.,  v.  George,  52  Okl. 
432,  153  P.  116.    Where,  during  the  examination  provided  for  in  a  fire  insur- 
ance policy,  insured  refused  to  answer  material  questions,  he  could  not  re- 
cover on  the  policy,  though  at  the  close  of  his  testimony  at  such  examination 
he  stated  that  he  would  not  refuse  to  answer  any  reasonable  question.     Id. 
That  the  examination  was  not  conducted  in  good  faith,  held  not  to  excuse 
plaintiffs  failure  to  answer  material  questions.     Id.     While  in  an  examina- 
tion of  insured  the  insurer  cannot  inquire  into  a  proposition  having  no  legiti- 
mate bearing  on  the  question  at  issue,  the  examination  should  be  liberal  in 
scope  to  reach  the  end  intended.     Id.     Where  insured  refused  to  state  on 

•-his  examination  whether  he  had  executed  certain  mortgages  on  the  insured 
property  in  excess  of  the  amount  stated  in  his  application,  he  was  thereby 
precluded  from  recovering  on  the  policy.  Id. 

Proof  of  loss. — Where  a  fire  insurance  policy  provides  that  in  case  of  loss 
the  insured  shall  give  notice  of  loss  and  within  60  days  make  verified  proof 
of  loss  in  writing  and  that  a  compliance  with  this  provision  is  a  condition 
precedent  to  an  action,  the  right  of  action  does  not  mature  till  the  provision 
has  been  complied  with  or  waived.  Commercial  Union  Assur.  Co.,  Limited, 
of  London,  England,  v.  Shults,  130  P.  572,  37  Okl.  95. 

A  policy  provided  for  proof  of  loss  in  writing  within  60  days  after  a  fire, 
and  that  no  action  on  the  policy  should  be  sustained  until  compliance  with 
such  requirement.  Held,  that  an  action  brought  before  proof  of  loss  ren- 
dered was  prematurely  brought.  Nance  v.  Oklahoma  Fire  Ins.  Co.,  31  Okl. 
208,  120  P.  948,  38  L.  R.  A.  (N.  S.)  426. 

47  Where  a  policy  provides  for  an  appraisement,  and  such  appraisement  is 
a  condition  precedent  to  an  action  where  no  appraisement  is  requested  by 
either  party,  and  the  company  denies  liability,  the  insured  is  not  precluded 
from  recovering  for  failure  to  demand  an  appraisement.  Oklahoma  Fire  Ins. 
Co.  v.  Mundel,  141  P.  415,  42  Okl.  270. 

Failure  of  fraternal  association  to  comply  with  by-laws  as  to  disapproval 
of  death  claims  excuses  beneficiary  from  compliance  with  provision  requiring 
claims  to  be  submitted  to  proper  tribunals  within  order  before  suit  on  certifi- 
cate. Haskew  v.  Knights  of  Modern  Maccabees,  58  Okl.  294,  159  P.  493. 


§    296  REMEDIES  AND   RIGHTS  (Ch.  5 

wholly  unnecessary  or  futile,48  or  be  contrary  to  law  or  public 
policy.49 

ARTICLE  II 

ELECTION  OF  REMEDIES 

Sections 

296.  Necessity. 

297.  Effect. 

298.  What     constitutes. 

§  296.     Necessity 

A  party  is  not  bound  in  all  cases  to  make  an  election.  The  holder 
of  a  note  held  as  collateral  cannot  be  compelled  to  elect  whether  he 
will  enforce  the  principal  or  the  collateral  obligation.  After  the 
debt  falls  due,  he  has  the  option  to  make  the  debt  out  of  the  proper- 
ty pledged,  or  to  pursue  his  remedies  against  the  pledger  as  though 
the  pledge  had  not  been  made.50 

In  an  action  for  damages  for  wrongful  attachment,  plaintiff's 
right  to  treat  such  attachment  as  a  conversion  and  to  recover  full 
value  of  the  property  depends  on  his  timely  election  to  do  so.51 


^s  it  is  not  necessary  to  tender  amount  received  in  settlement  of  cash  sur- 
render value  of  policy  over  a  loan  before  suit  on  the  policy,  where  it  is  cer- 
tain that  tender  will  be  refused.  Jones  v.  New  York  Life  Ins.  Co.,  122  P. 
702,  32  Okl.  339. 

Appraisement. — Where  there  was  a  total  loss  under  a  policy,  no  appraise- 
ment was  necessary,  though  made  by  the  policy  a  condition  precedent  to  suit. 
Springfield  Fire  &  Marine  Ins.  Co.  v.  Homewood,  122  P.  196,  32  Okl.  521, 
39  L.  R.  A.  (N.  S.)  1182. 

Provisions  of  a  policy  for  appraisal  on  disagreement  as  to  amount  of  loss, 
and  making  loss  payable  60  days  after  its  ascertainment,  including  an  award 
by  appraisers,  when  appraisal  has  been  required,  do  not  make  appraisal  a 
condition  precedent  to  an  action  on  the  policy.  American  Ins.  Co.  of  New- 
ark, N.  J.,  v.  Rodenhouse,  128  P.  502,  36  Okl.  211. 

Under  a  provision  for  an  appraisement,  it  is  as  much  the  duty  of  the  in- 
surer as  the  insured  to  demand  an  appraisement;  and  such  demand  by  the 
insured  is  not  a  condition  precedent  to  an  action  on  a  policy.  Rochester 
German  Ins.  Co.  of  Rochester,  N.  Y.,  v.  Rodenhouse,  128  P.  508,  36  Okl.  378. 

«  Const,  art.  23,  |  9,  prevents  the  abridging  of  the  time  within  which  rights 
under  the  law  may  be  enforced  and  the  requiring  of  any  notice  as  condition 
precedent  to  maintaining  of  an  action  for  breach  of  the  duty  imposed  by 
law,  but  does  not  relate  to  acts  that  must  be  performed  by  the  parties  to  an 
insurance  policy  as  a  part  of  the  contract.  Gray  v.  Reliable  Ins.  Co.,  110  P. 
728,  26  Okl.  592. 

so  Ricks  v.  Johnson,  62  Okl.  125,  162  P.  476. 

si  Wade  v.  Ray  (Okl.)  168  P.  447,  L.  R.  A.  1918B,  796. 

(174) 


Art.  2)  .      ELECTION   OP   REMEDIES  §§    297~298 

§  297.     Effect 

Where  the  law  gives  several  means  of  redress  based  on  conflict- 
ing- theories,  election  of  one  and  prosecution  to  final  judgment  is 
bar  to  adoption  of  any  other.52 

However,  the  commencement  of  an  action  in  ignorance  of  the 
facts  does  not  necessarily  constitute  an  election.  Thus  an  action 
to  rescind  a  contract  for  exchange  of  land  will  not  prevent  the 
recovery  of  damages  on  the  ground  of  election  of  remedies,  where 
when  the  action  was  brought  the  plaintiff  did  not  know  that  the 
defendant  had  deeded  the  land  conveyed  to  him  to  an  innocent 
purchaser.53 

§  298.     What  constitutes 

Where  the  plaintiff  sues  one  defendant,  and  by  an  amended  pe- 
tition seeks  additional  relief  against  other  defendants,  to  which  he 
is  not  entitled  as  against  the  original  defendant,  the  filing  of  the 
original  petition  was  not  an  election  of  remedies  estopping  relief 
as  against  other  defendants;  no  elements  of  estoppel  being  plead- 
ed or  shown.54 

52  First  Trust  &  Savings  Bank  of  Chicago,  111.,  v.  Bloodworth  (Okl.)  174  P. 
545.     Where  application  for  loan  was  forwarded  by  agent  of  applicant  and 
amount  of  mortgage  loan  was  paid  by  mortgagee  to  it,  action  by  mortgagor 
to  recover  amount  of  loan  from  his  agent  held  an  election  of  remedies  bar- 
ring defense  to  mortgage  that  consideration  was  not  received.    Id. 

53  Speed  v.  McMurray  (Okl.)  176  P.  506. 

s*  Marks  v.  Baum  Bldg.  Co.  (Okl.)  175  P.  818. 

(175) 


§§   299-300  ABATEMENT,  SURVIVAL  AND   REVIVOB  (Ch.  6 

CHAPTER  VI 

ABATEMENT,  SURVIVAL  AND  REVIVOR 

Sections 

299-310.    Article    I. — Survival    and    abatement. 
311-328.    Article  II.— Revivor. 

ARTICLE  I 

SURVIVAL  AND  ABATEMENT 

Sections 

299.  What  actions  survive. 

300.  Death  or  assignment.  9 

301.  Death  of  plaintiff. 

302.  Death  of  defendant. 

303.  Personal  injuries. 

304.  Action  for  wrongful  death. 

305.  Who  may  sue — Amount  of  recovery. 

306.  Party    in    representative    capacity — Change. 

307.  Receiver. 

308.  Transfer  of  interest. 

309.  Where  action  does  not  survive. 

310.  Abatement — Pendency  of  another  action. 

§  299.     What  actions  survive 

"In  addition  to  the  causes  of  action  which  survive  at  common 
law,  causes  of  action  for  mesne  profits,  or  for  an  injury  to  the  per- 
son, or  to  real  or  personal  estate,  or  for  any  deceit  or  fraud,  shall 
also  survive;  and  the  action  may  be  brought,  notwithstanding 
the  death  of  the  person  entitled  or  liable  to  the  same."  x 

The  death  of  either  party  pending  an  appeal  from  a  judgment 
denying  a  divorce  abates  the  action,  and  where  the  record  shows 
no  property  rights  involved,  the  appeal  will  be  dismissed.2 

§  300.     Death  or  assignment 

"An  action  does  not  abate  by  the  death  or  other  disability  of  a 
party,  or  by  the  transfer  of  any  interest  therein,  during  its  penden- 
cy,  if  the  cause  of  action  survive  or  continue.  In  case  of  the  death 
or  other  disability  of  the  party,  the  court  may  allow  the  action  to 
continue  by  or  against  his  representatives  or  successors  in  inter- 

1  Rev.  Laws  1910,  §  5279. 

2  Bunger  v.  Bunger,  160  P.  976,  99  Kan.  22. 

(176) 


Art.  1)  SURVIVAL  AND  ABATEMENT  §§    301-302 

est,  upon  such  terms  and  in  such  time  as  may  be  just  under  the 
circumstances  presented.  In  case  of  any  other  transfer  of  inter- 
ests, the  action  may  be  continued  in  the  name  of  the  original  par- 
ty, or  the  court  may  allow  the  person  to  whom  the  transfer  is  made 
to  be  substituted  in  the  action."  3 

§  301.     Death  of  plaintiff 

A  cause  of  action  for  recovery  of  money  on  an  appeal  bond  pass- 
es to  the  personal  representatives  of  a  deceased  plaintiff.4 

An  action  for  injuries  caused  by  negligence  does  not  abate  on 
plaintiff's  death.5 

Where  the  execution  of  a  mortgage  is  procured  by  duress,  the 
cause^of  action  therefor  is  not  personal  to  the  mortgagor,  and  his 
heirs  may  set  up  duress  in  an  action  to  foreclose,  or  they  may 
maintain  an  action  for  cancellation  on  such  ground.6 

§  302.     Death  of  defendant 

"No  action  pending  in  any  court-  shall  abate  by  the  death  of  ei- 
ther or  both  the  parties  thereto,  except  an  action  for  libel,  slander, 
malicious  prosecution,  for  a  nuisance,  or  against  a  justice  of  the 
peace  for  misconduct  in  office,  which  shall  abate  by  the  death  of 
the  defendant."  7 

An  action  for  malicious  prosecution  abates  on  the  death  of  the 
defendant,  and  the  cause  of  action  dies  with  him.8 

Death  of  defendant  pending  appeal  in  an  action  for  libel  abates 
the  action,  and  the  appeal  will  be  dismissed.9 

When,  in  an  action  on  a  joint  and  several  note,  it  is  shown  that 
one  of  the  defendants  has  died  since  the  action  was  filed  and  serv- 
ice had,  the  action  abates  only  as  to  the  deceased  defendant,  and 
on  verdict  returned  against  all  the  defendants  the  court  may  ren- 
der judgment  against  the  surviving  defendants.10 

Where  a  case  is  commenced  against  receivers,  and  the  receivers 

a  Rev.  Laws  1910,  §  4695. 
*  Zahn  v.  Obert,  60  Okl.  118,  159  P.  298. 

5  Missouri  Pac.  Ry.  Co.  v.  Bennett's  Estate,  47  P.  183,  5  Kan.  App.  231, 
judgment  affirmed  49  P.  606,  58  Kan.  499. 
e  Drake  v.  High  (Okl.)  172  P.  53. 
7  Rev.  Laws  1910,  §  5280. 
s  Loeser  v.  Loeser,  50  Okl.  249,  150  P.  1045. 
»  Loekett  v.  Tucker,  56  Okl.  552,  156  P.  323. 
10  Gillespie  v.  First  Nat.  Bank,  95  P.  220,  20  Okl.  768. 

HON.PL.&  PRAC.— 12  (177) 


§§    302-304  ABATEMENT,  SURVIVAL  AND   BEVIVOR  (Ch.  6 

die,  and  a  receiver  de  bonis  non  is  appointed,  and  no  attempt  is 
made  to  revive  the  action  for  more  than  a  year,  a  motion  to  abate 
the  action  will  be  sustained.11 

An  action  by  a  wife  for  alienation  of  her  husband's  affections 
does  not  abate  by  her  death  while  the  action  is  pending  in  the  Su- 
preme Court.12 

§  303.     Personal  injuries 

An  action  for  personal  injuries  not  resulting  in  death  survives 
to  the  personal  representatives.13 

The  representative  is  entitled  to  have  included  in  the  verdict 
the  same  allowance  for  pain  and  suffering  of  the  deceased  as  de- 
ceased would  have  had  had  he  lived.14 

An  action  may  be  maintained  by  an  injured  person  against  the 
administrator  of  the  wrongdoer's  estate.15 

§  304.     Action  for  wroingful  death 

"When  the  death  of  one  is  caused  by  the  wrongful  act  or  omis- 
sion of  another,  the  personal  representatives  of  the  former  may 
maintain  an  action  therefor  against  the  latter,  if  the  former  might 
have  maintained  an  action  had  he  lived,  against  the  latter  for  an 
injury  for  the  same  act  or  omission.  The  action  must  be  com- 
menced within  two  years.  The  damages  must  inure  to  the  exclu- 
sive benefit  of  the  widow  and  children,  if  any,  or  next  of  kin,  to 
be  distributed  in  the  same  manner  as  personal  property  of  the  de- 
ceased." 16 

11  Hutchings  v.  Eddy,  50  P.  944,  6  Kan.  App.  490. 

12  Powers  v.  Sumbler,  110  P.  97,  83  Kan.  1. 

is  Martin  v.  Missouri  Pac.  Ry.  Co.,  49  P.  605,  58  Kan.  475. 

The  common-law  right  of  action,  which  survives  the  death  of  the  Injured 
person,  is  independent  of  the  right  of  action  given  for  the  recovery  of  dam- 
ages for  the  benefit  of  the  widow  and  next  of  kin.  St.  Louis  &  S.  F.  R.  Co. 
v.  Goode,  142  P.  1185,  42  Okl.  784,  L.  R.  A.  1915E,  1141.  The  common-law 
right  of  action  for  personal  injuries  survives  the  death  of  the  injured  person 
and  vests  in  his  personal  representative,  though  the  death  resulted  from  such 
Injuries.  Id. 

i*  Atchison,  T.  &  S.  F.  R.  Oo.  v.  Rowe,  43  P.  683,  56  Kan.  411. 

IB  Casteel  v.  Brooks,  46  Okl.  189,  148  P.  158. 

i«  Rev.  Laws  1910,  §  5281. 

A  cause  of  action  arising  under  St.  1893,  §  4313  (Rev.  Laws  1910,  §  5281), 
for  wrongful  death,  will  survive  the  death  of  the  beneficiary  named  therein, 
and  may  be  revived  and  prosecuted  by  his  administratrix.  City  of  Shawnee 
v.  Cheek,  137  P.  724,  41  Okl.  227,  51  L.  R.  A.  (N.  S.)  672,  Ann.  Cas.  1915C,  290. 

St.  1893,  §  4313  (Re-,\  Laws  1910,  §  5281),  authorizing  recovery  for  wrong- 

(178) 


Art.  1)  SURVIVAL  AND  ABATEMENT  §§    304-305 

In  the  absence  of  a  statutory  or  constitutional  provision  an  ac- 
tion cannot  be  maintained  for  the  wrongful  death  of  another;17 
for  at  common  law  the  death  of  a  human  being,  though  clearly  in- 
volving pecuniary  loss,  was  not  a  ground  of  an  action  for  dam- 
ages.18 

The  provision  of  the  Constitution  that  the  right  of  action  to  re- 
cover damages  for  injuries  resulting  in  death  shall  never  be  ab- 
rogated, and  the  amount  recoverable  shall  not  be  subject  to  any 
statutory  limitation,  does  not  change  the  method  of  procedure  in 
such  cases.19  ' 

§  305.    Who  may  sue — Amount  of  recovery 

"In  all  cases  where  the  residence  of  the  party  whose  death  has 
been  caused  as  set  forth  in  the  preceding  section,  is  at  the  time  of 
his  death  in  any  other  state  or  territory,  or  when,  being  a  resident 
of  this  state,  no  personal  representative  is  or  has  been  appointed, 
the  action  provided  in  the  said  section  may  be  brought  by  the  wid- 
ow, or  where  there  is  no  widow,  by  the  next  of  kin  of  such  de- 
ceased." 20 

In  an  action  under  the  statute  for  the  wrongful  death  of  a  spouse, 


ful  death,  confers  upon  the  beneficiary  thereof  a  property  right  in  the  pecun- 
iary value  to  him  of  the  decedent's  life,  and  gives  him  a  new  cause  of  action 
for  the  pecuniary  loss  which  he  has  sustained  from  such  death.  City  of 
Shawnee  v.  Cheek,  137  P.  724,  41  Okl.  227,  51  L.  R.  A.  (N.  S.)  672,  Ann.  Cas. 
1915C,  290. 

Comp.  Laws  1909,  §§  2881,  2882,  held  not  to  give  a  right  of  action  for 
wrongful  death;  such  right  being  conferred  alone  by  Wilson's  Rev.  &  Ann. 
St.  1903,  §§  4611,  4612.  Shawnee  Gas  &  Electric  Co.  v.  Mbtesenbocker,  138 
P.  790,  41  OKI.  454. 

Civ.  Code,  §  422,  does  not  change  a  pending  action  for  injuries  brought  by 
the  deceased  in  his  lifetime  into  an  action  for  wrongful  death.  Missouri  Pac. 
Ry.  Co.  v.  Bennett's  Estate,  47  P.  183,  5  Kan.  App.  231,  judgment  affirmed 
49  P.  606,  58  Kan.  499. 

Laws  1889,  c.  131,  supplementing  Civ.  Code,  §  422,  giving  an  action  for 
wrongful  death,  does  not,  by  providing  that  a  cause  of  action  given  by  sec- 
tion 422  shall  not  be  lost  because  of  nonresidence  of  the  deceased  or  non- 
appointment  of  a  representative,  create  a  new  cause  of  action,  or  impose  any 
limitation  on  an  existing  one.  Atchison,  T.  &  S.  F.  R.  Co.  v.  Napole,  40  P. 
669,  55  Kan.  401. 

IT  City  of  Eureka  v.  Merrifield,  37  P.  113,  53  Kan.  794. 

is  Missouri,  K.  &  T.  Ry.  Co.  v.  Lenahan,  135  P.  383,  39  Okl.  283. 

i»  Shawnee  Gas  &  Electric  Co.  v.  Motesenbocker,  138  P.  790,  41  Okl.  454. 
v.  Laws  1910,  §  5282. 

(179) 


§    305  ABATEMENT,  SURVIVAL  AND   REVIVOB  (Ch.  6 

parent,  or  child,  the  plaintiff  is  limited  in  damages  to  the  pecuniary 
loss  sustained  by  the  wrongful  death.21 

21  Blunt  v.  Chicago,  R.  I.  &  P.  R.  Co.  (Okl.)  173  P.  656 ;  Missouri,  K.  &  T. 
Ry.  Co.  v.  West,  38  Okl.  581,  134  P.  655. 

In  an  action  for  the  wrongful  killing  of  plaintiff's  child,  unless  the  evi- 
dence shows  a  reasonable  expectation  that  the  child  would  have  contributed 
to  the  support  of  his  parents  after  majority,  the  damages  are  limited  to  the 
amount  which  will  compensate  for  loss  of  the  child's  services  to  his  major- 
ity. Muskogee  Electric  Traction  Co.  v.  Hairel,  46  Okl.  409,  148  P.  1005. 

In  an  action  for  the  benefit  of  dependent  children,  the  measure  of  damages, 
under  federal  Employers'  Liability  Act  (U.  S.  Comp.  St.  §§  8657-8665),  is  such 
an  amount  as  deceased  would  reasonably  be  expected  to  have  contributed  to 
their  support  and  education.  Kansas  City,  M.I  &  O.  Ry.  Co.  v.  Roe,  50  Okl. 
105,  150  P.  1035. 

The  measure  of  damages  for  the  wrongful  death  of  the  husband  and  father 
was  the  pecuniary  loss  suffered  by  the  widow  and  minor  children  by  being 
deprived  of  his  care  and  support,  as  determined  by  his  age,  physical  condi- 
tion, occupation,  earning  capacity,  and  the  use  made  by  him  of  his  earnings. 
Big  Jack  Mining  Co.  v.  Parkinson,  137  P.  678,  41  Okl.  125. 

In  action  for  wrongful  death  of  son,  where  there  is  evidence  of  parent's 
dependency  and  a  reasonable  expectation  of  ^ntribution  from  son,  the  meas- 
ure of  damages  is  the  amount  compensating  parent  for  loss  sustained  by 
son's  death.  Lusk  v.  Phelps  (Okl.)  175  P.  756. 

In  action  for  wrongful  death  of  their  son,  dependent  parents  may  recover 
damages  on  account  of  contributions  he  would  probably  have  made.  We- 
leetka  Cotton  Oil  Oo.  v.  Brookshire  (Okl.)  166  P.  408. 

In  an  action  by  the  administrator  of  a  deceased  minor,  it  is  within  the 
province  of  the  jury  to  estimate  the  damages  with  reference  to  the  pecun- 
iary injury,  present  or  prospective,  resulting  to  next  of  kin,  from  the  facts 
proved,  in  connection  with  their  own  knowledge  and  common  experience,  and 
it  is  not  necessary  that  any  witness  should  have  expressed  an  opinion  of  the 
amount  of  such  loss.  Union  Pac.  Ry.  Co.  v.  Dunden,  14  P.  501,  37  Kan.  1. 

In  an  action  to  recover  damages  for  the  services  of  a  minor  son  killed  by 
the  alleged  negligence  of  defendant,  and  to  recover  the  benefits  which  plain- 
tiffs expected  to  receive  from  him  by  way  of  support  after  he  reached  his 
majority,  plaintiffs'  right  to  recover  for  such  expected  benefits  is  limited  to 
their  lives,  and  is  not  the  amount  they  might  have  expected  to  receive  from 
the  son  after  he  reached  majority  and  during  the  time  he  had  continued  to 
live.  Fidelity  Land  &  Improvement  Co.  v.  Buzzard,  76  P.  832,  69  Kan.  330. 

An  action  under  Civ.  Code,  §  422,  providing  for  the  recovery  of  damages 
for  wrongfully  causing  a  death,  is  for  pecuniary  loss  to  those  entitled  to  the 
recovery,  and,  when  brought  in  behalf  of  the  next  of  kin  to  whose  support 
the  deceased  was  under  no  legal  obligation  to  contribute,  it  can  be  main- 
tained for  substantial  damages  only  by  proof  that  he  was  in  the  habit  of 
contributing  to  their  support  or  education,  and  might  be  reasonably  expected 
to  continue  such  habit,  or  by  proof  of  declarations,  acts,  conduct,  or  relevant 
circumstances  reasonably  tending  to  show  an  intention  on  his  part  to  make 
such  contributions  of  support  or  education ;  and  hence  where  a  case  lacks 
such  proof  a  verdict  for  $5,000  damages  for  the  death  cannot  be  sustained, 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Ryan,  64  P.  603,  62  Kan.  682. 

In  an  action  by  nonresident  alien  partent  to  recover  for  the  death  of  their 

(180) 


Art.  1)  SURVIVAL  AND   ABATEMENT  §    305 

Thus,  loss  of  society  and  protection,22  the  mental  anguish  and 
suffering  of  the  deceased,23  and  the  mental  anguish  and  suffering 
of  the  widow  are  not  proper  items  of  damage  in  such  action.2* 


minor  son,  proof  as  to  the  value  of  actual  services  rendered  or  which  might 
have  been  rendered  by  the  minor  son  is  not  indispensable,  but  there  must 
be  evidence  to  justify  a  reasonable  expectation  of  pecuniary  benefit  to  his 
parents  in  the  continuance  of  his  life.  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Fa- 
jardo,  86  P.  301,  74  Kan.  314,  6  L.  R.  A.  (N.  S.)  681. 

In  a  suit  to  recover  damages  for  the  death  of  a  minor,  under  Civ.  Code,  § 
422,  the  fact  that  the  parents  had  released  to  such  minor  his  time  and  serv- 
ices during  his  minority  may  be  considered  in  determining  the  amount  of 
recovery-  St.  Joseph  &  W.  R.  Co.  v.  Wheeler,  10  P.  461,  35  Kan.  185. 

In  an  action  for  death,  it  appeared:  That  decedent  was  21  years  old,  un- 
married, of  normal  physique,  and  in  good  health ;  that  he  was  industrious, 
steady,  and  without  bad  habits ;  that  his  relations  with  his  parents  were 
most  pleasant ;  that  he  had  been  away  from  home  since  he  was  19,  and  dur- 
ing that  time  his  parents  had  made  no  claim  to  his  earnings ;  that,  though 
they  were  neither  old  nor  indigent,  he  contributed  to  their  support,  the  last 
occasion  being  shortly  before  he  was  killed ;  that  altogether  he  had  sent 
home  $35,  and  at  time  of  death  was  earning  $1.75  a  day ;  that  his  motive  for 
leaving  home  was  to  see  something  of  the  world ;  and  that  arrangements  had 
been  made  for  him  to  go  home  and  help  his  father  run  two  farms,  which  would 
have  been  mutually  advantageous.  Held,  that  the  father  and  mother  had  the 
right  to  expect  to  receive  pecuniary  benefits  from  his  continued  life  and  suf- 
ficient data  appeared  from  which  damages  sustained  by  his  death  could  be 
computed.  Pittsburg  Vitrified  Pav.  &  Bldg.  Brick  Go.  v.  Fisher,  100  P.  507, 
79  Kan.  576. 

Amounts  held  not  excessive. — See  L.  R.  A.  1916C,  820. 

A  recovery  of  $15,000  for  death  of  an  employe  who  had  earned  as  much  as 
$160  a  month  and  was  30  years  old,  sober  and  healthy,  and  who  left  a  wife 
and  small  child,  held  not  excessive  in  view  of  Const,  art.  23,  §  7  (Williams' 
Const.  §  356),  providing  that  the  damages  for  wrongful  death  shall  not  be 
subject  to  any  statutory  limitation.  St.  Louis  &  S.  F.  R.  Co.  v.  Long,  137 
P.  1156,  41  Okl.  177,  Ann.  Cas.  1915C,  432. 

The  recovery  of  $15,000  for  the  death  of  the  husband  by  his  widow,  suing 
for  herself  and  minor  children,  held  not  excessive.  San  Bois  Coal  Co.  v. 
Resetz,  143  P.  46,  43  Okl.  384. 

A  recovery  of  $15,000  for  wrongful  death  of  the  husband  and  father  held 
not  excessive,  where  he  was  38  years  of  age,  In  good  health,  and  earning 
$83.33  per  month  at  the  time  of  his  death,  with  a  steadily  increasing  earning 
capacity,  and  it  appeared  that  such  amount  was  just  one-half  of  his  cash 

22  Missouri,  O.  &  G.  Ry.  Co.  v.  Lee,  175  P.  367. 

23  In  an  action  by  the  \vidow  and  children  of  decedent  under  Rev.  Laws 
1910,   §  5281,  for  wrongful  death,  plaintiffs  cannot  recover  for  his  mental 
anguish  and  suffering,  any  recovery  therefor  belonging  to  Ms  estate.     Smith 
v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  142  P.  398,  42  Okl.  577. 

24  Missouri,  O.  &  G.  Ry.  Co.  v.  Lee  (Okl.)  175  P.  367. 

(181) 


§    305  ABATEMENT,  SURVIVAL  AND   REVIVOR  (Ch.  G 

Nominal  damages  may  be  recovered,  if  it  appears  that  the  death 
was  caused  by  the  wrongful  act  or  omission  of  the  defendant, 
though  no  actual  damages  are  shown.25 

probable  earnings  during  his  life  expectancy.  Missouri,  K.  &  T.  Ry.  Co.  v. 
West,  38  Okl.  581,  134  P.  655. 

An  award  of  $3,000  for  causing  the  death  of  a  man  24  years  old,  unmarried, 
who  had  been  in  this  country  for  two  years,  and  was  earning  $30  a  month 
besides  his  board  and  lodging,  the  recovery  being  for  the  benefit  of  his  par- 
ents, aged  58  and  55,  living  in  Russia,  to  whom  he  had  sent  money  at  dif- 
ferent times  in  amounts  varying  from  $25  to  $60,  was  not  excessive.  Cox 
v.  Kansas  City,  120  P.  553,  86  Kan.  298. 

A  verdict  of  $4,500  for  the  death  of  a  brakeman  34  years  of  age,  with  a 
life  expectancy  of  32  years,  in  favor  of  his  mother,  a  widow  59  years  of  age, 
was  not  excessive,  where  intestate  was  a  single  man,  earning  $60  to  $75  per 
month,  and  had  resided  with,  and  wholly  supported,  his  mother  for  10  years. 
St.  Louis  &  S.  F.  Ry.  Co.  v.  French,  44  P.  12,  56  Kan.  584. 

A  verdict  of  $7,830  was  not  excessive  for  negligently  causing  the  death  of 
a  miner  40  years  old,  of  sound  body  and  good  habits,  and  capable  of  earning 
$42  per  month.  Atchison,  T.  &  S.  F.  R.  Co.  v.  Hughes,  40  P.  919,  55  Kan.  491. 

A  judgment  for  $3,000  for  the  wrongful  death  of  a  minor,  who  was  11 
years  and  8  months  old,  intelligent,  healthy,  and  promising,  and  left  surviv- 
ing him  a  father,  a  poor  man,  working  as  an  engineer,  and  having  a  wife 
and  three  children,  held  not  grossly  excessive.  Union  Pac.  Ry.  Co.  v.  Dun- 
den,  14  P.  501,  37  Kan.  1. 

In  mother's  action  for  damages  for  wrongful  death  of  son,  a  verdict  for 
$5,000  was  not  excessive,  where  deceased  was  33  years  of  age,  was  in  good 
health,  able  to  earn  $1,000  a  year,  and  was  accumulating  property.  Berry  v. 
Dewey,  172  P.  27,  102  Kan.  593. 

Verdict  for  $4,000  for  widow,  $5,250  for  four  year  old  child,  and  $5,750 
for  two  year  old  child  of  deceased  railroad  employs  killed  in  interstate  com- 
merce, who  was  26  years  of  age,  industrious,  and  had  constant  employment 
at  from  $2.50  to  $3.50  per  day,  was  not  excessive.  Griffith  v.  Midland  Valley 
R.  Co.,  100  Kan.  500,  166  P.  467. 

Allowance  of  $1,250  to  widow  of  deceased  railroad  employe1  for  estimated 
pecuniary  loss  from  his  death  held  not  large  enough  to  justify  interference, 
although  money  sent  to  her  by  deceased  during  his  absence  of  13  years  did 
not  exceed  $110.  Forbes  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  101  Kan.  477,  168 
P.  314. 

An  award  of  $12,000  for  death  of  man  38  years  old,  with  family,  and 

2  5  Atchison,  T.  &  S.  F.  R.  Co.  v.  Weber,  6  P.  877,  33  Kan.  543,  52  Am. 
Rep.  543. 

In  an  action  for  the  benefit  of  the  parents,  to  recover  for  the  alleged  negli- 
gent killing  of  their  son,  who  was  grown  up,  of  full  age,  and  living  apart 
from  them,  but  was  unmarried,  no  proof  was  offered  of  the  parents'  financial 
condition,  or  that  they  had  ever  received  any  actual  pecuniary  benefits  from 
the  son  during  his  lifetime ;  nor  was  there  any  evidence  showing  a  reason- 
able probability  of  pecuniary  advantage  to  them  from  the  continuance  of  the 
son's  life.  Held,  that  no  more  than  nominal  damages  should  have  been  re- 
covered. Cherokee  &  P.  Coal  &  Mining  Co.  v.  Limb,  28  P.  181,  47  Kan.  469 

(182) 


Art.  1)  SURVIVAL   AND   ABATEMENT  §§    305-306 

Financial  benefits  to  the  sole  heir  of  a  person  who  has  lost  his 
life  by  wrongful  act  of  another  cannot  be  deducted  from  damages 
sustained,  and  the  verdict  and  judgment  reduced  by  such  benefits.26 

§  306.     Party  in  representative  capacity — Change 

Proceedings  in  revivor  are  not  necessary  in  substituting  a  new 
next  friend  for  one  who  had  previously  acted  in  behalf  of  an  in- 
earning  about  $75  per  month,  held  not  excessive,  where  the  action  was 
brought  under  the  federal  Employers'  Liability  Act  (U.  S.  Comp.  St.  §§  8657- 
8665),  and  the  accident  arose  from  a  violation  of  the  Safety  Appliance  Act 
as  amended  March  2,  1903  (U.  S.  Comp.  St.  §§  8613-8615).  Thornbro  v.  Kan- 
sas City,  M.  &  O.  Ry.  Co.,  139  P.  410,  91  Kan.  684,  Ann.  Cas.  1915D,  314, 
rehearing  granted  139  P.  1199,  and  judgment  affirmed  on  rehearing  142  P. 
250,  92  Kan.  681. 

A  recovery  of  $8,000  for  wrongful  death  of  plaintiff's  husband  held  not 
excessive.  Corley  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  147  P.  842,  95  Kan.  124. 

Amounts  held  excessive. — See  L.  R.  A.  1916C,  820. 

Verdict  of  $30,000  awarded  widow  of  tool  sharpener  35  years  of  age,  em- 
ployed in  and  about  drilling  of  oil  well,  killed  by  an  explosion  of  escaping 
gas,  who  moved  about  following  oil  industry,  and  had  once  been  a  railroad 
fireman,  was  excessive,  and  would  be  reduced  to  $20,000,  or  a  new  trial 
granted.  Slick  Oil  Co.  v.  Coffey  (Okl.)  177  P.  915. 

Where  deceased  at  the  time  of  his  death  was  66  years  of  age,  unmarried, 
a  farmer  living  on  leased  land,  who  owned  only  a  small  amount  of  personal 
property,  and  plaintiffs  in  an  action  for  his  wrongful  death  were  his  nephews 
and  nieces  in  comfortable  circumstances  and  to  whom  he  had  made  casual 
gifts,  a  verdict  of  $7,000  was  excessive.  Missouri,  K.  &  T.  Ry.  Co.  v.  Mc- 
Laughlin,  84  P.  989,  73  Kan.  248. 

In  an  action  for  the  death  of  plaintiffs  son  19  years  old  and  earning  from 
$1.50  to  $1.75  a  day,  a  verdict  of  $10,000  will  be  reduced  to  $6,000.  Aaron  v. 
Missouri  &  K.  Telephone  Co.,  131  P.  582,  89  Kan.  186,  45  L.  R.  A.  (N.  S.)  309. 

In  an  action  for  the  death  of  plaintiffs'  son,  a  railroad  engineer,  a  verdict 
for  $6,000  held  excessive  and  reduced  to  $4,000.  Denver  v.  Atchison,  T.  &  S. 
F.  R.  Co.,  150  P.  562,  96  Kan.  154,  Ann.  Cas.  1917A,  1007. 

In  an  action  for  the  death  of  one  killed  on  a  railroad,  the  evidence  as  to 
the  pecuniary  value  of  the  life  of  decedent  was  to  the  effect  that  she  was  59 
years  old,  the  mother  of  five  children ;  that  she  was  possessed  of  superior 
intelligence,  and  was  active,  vigorous,  and  in  good  health ;  and  that  one  son, 
21  years  of  age,  lived  with  her.  There  was  no  evidence  as  to  the  ages  of  the 
other  children,  whether  they  lived  with  decedent,  or  whether  any  of  dece- 
dent's children  were  dependent  on  her  for  support.  Held,  that  a  verdict  of 
$1,000  would  be  considered  more  than  nominal  damages,  and,  the  evidence  be- 
ing insufficient  to  show  actual  damage,  the  verdict  would  be  set  aside  as  ex- 
cessive. St.  Louis  &  S.  F.  R.  Co.  v.  Blinn,  62  P.  427,  10  Kan.  App.  468. 

26  Berry  v.  Dewey,  172  P.  27,  102  Kan.  593. 

In  an  action  for  wrongful  death  of  plaintiff's  son,  an  instruction  that  in 
considering  damages  the  jury  might  consider  the  fact  that  plaintiff  inherited 
an  allotment  belonging  to  the  son  is  erroneous.  Missouri,  K.  &  T.  Ry.  Co.  v. 
James,  61  Okl.  1,  159  P.  1109. 

(183) 


§§    307-308  ABATEMENT,  SURVIVAL,  AND   REVIVOR  (Ch.  6 

fant.27  Where  a  suit  is  brought  by  a  guardian,  and  pending  the  ac- 
tion the  wards  became  of  age,  the  suit  does  not  abate,  the  guardian 
is  properly  discharged,  and  revivor  is  neither  necessary  nor  prop- 
er.28 

§  307.    Receiver 

The  rights  and  remedies  of  plaintiff  to  recover  for  wrongfully 
seizing  his  store,  under  a  chattel  mortgage  against  the  stock,  did 
not  abate  with  the  appointment  of  a  receiver.29 

Where  it  appears  from  the  action  of  a  federal  court  in  discharg- 
ing a  receiver  appointed  by'  it  of  an  electric  railway  that  the  rail- 
way was  taken  out  of  the  hands  of  the  receiver  and  restored  to  the 
company,  and  that  cases  pending  in  the  state  courts  against  the 
receiver  were  turned  over  to  the  company  to  defend,  and  the  com- 
pany ordered  to  save  the  receiver  harmless  from  any  judgment  that 
might  be  entered  against  him  in  such  cases,  and,  in  the  event  of 
failure  to  do  so,  the  property  to  be  held  responsible  therefor,  the 
order  evidently  contemplated  a  continuance  of  the  cases  in  the 
name  of  the  receiver,  and  it  was  not  error  to  overrule  a  motion  to 
dismiss  an  action  in  a  state  court  on  the  ground  that  the  receiver 
had  been  discharged  by  the  federal  court.30 

§  308.     Transfer  of  interest 

In  case  of  a  transfer  of  a  claim  sued  on,  the  action  may  proceed 
in  the  name  of  the  original  party,31  though  assigned  by  him  upon 
certain  conditions  which  afterwards  fail,32  or  the  assignee  may  be 
substituted.33 


ZT  Missouri  Pac.  Ry.  Co.  v.  Moffatt,  55  P,  837,  60  Kan.  113,  72  Am.  St. 
Rep.  343. 

28  Shattuck  v.  Wolf,  83  P.  1093,  72  Kan.  366. 

20  Tootle  v.  Kent,  73  P.  310,  12  Okl.  674. 

so  Peterson  v.  Baker,  97  P.  373,  78  Kan.  337. 

si  Rev.  Laws  1910,  §  4695. 

An  action  on  an  account  does  not  abate  because  of  a  transfer  of  an  inter- 
est therein.  Werner  v.  Hatton,  38  P.  279,  54  Kan.  250. 

An  averment  in  the  answer  that  plaintiff  had  conveyed  his  interest  in  the 
land  since  the  commencement  of  the  action,  which  was  not  denied  under 
oath,  was  not  sufficient  to  bar  a  recovery  by  the  plaintiff.  Douglas  v.  Muse, 
61  P.  413,  62  Kan.  865. 

32  Crocker  v.  Ball,  59  P.  691,  10  Kan.  App.  364. 

33A  right  of  action  for  unlawful  and  forcible  detainer  by  one  entitled  to 
possession,  in  case  of  a  transfer  of  the  interest  of  plaintiff,  continues  in  his 

(184)  . 


Art.  1)  SURVIVAL  AND   ABATEMENT  §§    308-310 

#A  plaintiff  in  an  action  on  a  quantum  meruit,  who  assigns  dur- 
ing its  .pendency  a  part  of  his  interest  therein,  may  recover  in  his 
own  name  the  amount  assigned.34 

Where  a  lessee  after  suing  for  possession  surrenders  his  lease,  it 
is  proper  to  substitute  the  lessor  as  plaintiff.85 

§  309.     Where  action  does  not  survive 

"Where  one  of  several  plaintiffs  or  defendants  dies,  or  his  pow- 
ers as  a  personal  representative  cease,  if  the  cause  of  action  do  not 
admit  of  survivorship,  and  the  court  is  of  opinion  that  the  merits  of 
the  controversy  can  be  properly  determined  and  the  principles  ap- 
plicable to  the  case  fully  settled,  it  may  proceed  to  try  the  same  as 
between  the  remaining  parties;  but  the  judgment  shall  not  prej- 
udice any  who  were  not  parties  at  the  time  of  trial."  36 

§  310.     Abatement — Pendency  of  another  action      • 

Where  an  action  is  brought  in  Oklahoma  and  jurisdiction  ac- 
quired, and  thereafter  the  action  is  brought  in  another  state  in 
which  plaintiff  in  Oklahoma  is  there  made  defendant,  and  defend- 
ant in  Oklahoma  is  served  with  a  garnishment  writ,  the  latter  ac- 
tion cannot  be  pleaded  in  bar  or  abatement  of  the  former.37 

Two  creditors  of  an  insolvent  corporation  may  proceed  concur- 
rently, to  enforce  the  stockholders'  liability;  the  pendency  of  pro- 
ceedings by  one  being  no  bar  to  proceedings  by  the  other.38 

The  pendency  of  another  suit  between  the  same  parties  upon  a 
judgment  rendered  by  a  court  in  Illinois  upon  a  written  instrument 
is  a  bar  to  the  prosecution  of  another  suit  on  the  same  instru- 
ment.39 

A  pending  action  of  forcible  entry  and  detainer  is  no  bar  to  an 
action  of  ejectment  by  the  same  landlord  against  the  same  tenant 


grantee.    Leach  v.  Sargent,  55  Okl.  203,  154  P.  1143 ;   Anderson  v.  Ferguson, 
71  P.  225,  12  Okl.  307. 

s*  McKnight  v.  Bertram  Heating  &  Plumbing  Co.,  70  P.  345,  65  Kan.  859. 

as  Leach  v.  Sargent,  55  Okl.  203,  154  P.  ^143. 

36  Rev.  Laws  1910,  §  5284. 

37  Missouri,  K.  &  T.  Ry.  Co.  v.  Bradshaw,  132  P.  327,  37  Okl.  317,  L.  R.  A. 
1917F,  1013. 

SB  Buist  v.  Citizens'  Sav.  Bank,  46  P.  718,  4  Kan.  App.  700. 
«»  Wester velt  v.  Jones,  52  P.  194,  7  Kan.  App.  70. 

(185) 


§    310  ABATEMENT,  SURVIVAL  AND  REVIVOB  (Ch.  6 

for  the  same  land,40  nor  is  it  any  bar  to  an  action  for  rent  or  use 
and  occupation.41 

Where  mandamus  is  pending  in  a  state  court  to  compel  removal 
of  a  railroad  bridge  obstructing  a  river  and  flooding  the  neighbor- 
hood, a  later  proceeding  in  the  federal  court  to.  foreclose  a  mort- 
gage on  the  property  does  not  abate  the  action  in  the  state  court 
nor  oust  its  jurisdiction.42 

A  plea  in  abatement,  alleging  the  pendency  of  a  prior  suit  on  the 
same  cause  of  action,  was  properly  overruled  where  the  prior  ac- 
tion was  dismissed  upon  filing  of  the  plea.48 

An  action  which  stands  dismissed  on  motion  of  plaintiff  is  no 
bar  to  an  action  by  the  successor  in  interest  of  defendant.44 

The  pendency  of  garnishment  proceedings  in  another  state  to 
subject  the  debt  for  which  plaintiff  sues  constitutes  no  defense, 
where  it  appears  that  the  court  in  which  such  proceedings  are 
pending  has  no  jurisdiction  of  the  defendant.46 

40  Buettinger  v.  Hurley,  9  P.  197,  34  Kan.  585. 

41  Hart  v.  Ferguson  (Okl.)  176  P.  396. 

42  Kaw  Valley  Drainage  Dist.  of  Wyandotte  County  v.  Missouri  Pac.  Ry. 
Co.,  161  P.  937,  99  Kan.  188. 

43  Warnock  v.  Moore,  137  P.  959,  91  Kan.  262. 

An  action  brought  by  the  person  in  possession  of  an  office  prior  to  the 
commencement  of  the  next  regular  term,  for  the  purpose  of  enjoining  a  per- 
son claiming  to  be  his  successor  from  taking  possession  of  the  office,  does  not 
abate  an  action  of  quo  warranto  brought  against  such  person  after  he  has 
taken  possession  of  the  office,  and  been  officially  recognized,  where  it  appears 
that  such  prior  action  has  been  dismissed  before  the  trial  of  the  quo  warran- 
to case.  Snow  v.  Hudson,  43  P.  260,  56  Kan.  378. 

44  jay  v.  Zeissness,  52  P.  928,  6  Okl.  591. 

45  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Campbell,  49  P.  321,  5  Kan.  App.  423. 

(186) 


Art.  2)  REVIVOR  §§  311-312 


REVIVOR 

Sections 

311.  Where  action  survives  upon  death  of  party. 

312.  Proceedings. 

313.  Who  may  move. 

314.  Consent  or  notice. 

315.  Notice  by  publication. 

316.  Death  of  plaintiff. 

317.  Death  of  defendant. 

318.  Limitation. 

819.  Amendment  to  petition. 

320.  Time  of  order. 

821.  Delay  to  revive. 

822.  Vacation  of  order. 

323.  Objections  and  waiver. 

324.  Action  dismissed,  when. 

325.  At  instance  of  defendant. 

326.  Trial. 

327.  Death  after  judgment. 

328.  Revivor  of  judgment — Forms. 

§  311.    Where  action  survives  upon  death  of  party 

"Where  there  are  several  plaintiffs  or  defendants  in  an  action, 
and  one  of  them  dies,  or  his  powers,  as  personal  representative 
cease,  if  the  right  of  action  survive  to  or  against  the  remaining 
parties  the  action  may  proceed,  the  death  of  the  party  or  the  cessa- 
tion of  his  powers  being  stated  on  the  record."  *6 

"When  one  of  the  parties  to  an  action  dies,  or  his  powers  as  a 
personal  representative  cease  before  the  judgment,  if  the  right  of 
action  survive  in  favor  of  or  against  his  representatives  or  succes- 
sors, the  action  may  be  revived  and  proceed  in  their  names."  47 

Where  a  number  of  tenants  in  common  of  lands  join  in  an  ac- 
tion for  the  recovery  thereof,  and  one  of  them  dies  during  its  pend- 
ency, surviving  plaintiffs  may  continue  the  action  for  the  recov- 
ery of  their  severable  interests  without  a  reviver.48 

§  312.    Proceedings 

"The  revivor  shall  be  by  an  order  of  the  court,  if  made  in  term, 
or  by  a  judge  thereof,  if  in  vacation,  that  the  action  be  revived  in 
the  names  of  the  representatives  or  successor  of  the  party  who 

46  Rev.  Laws  1910,  §  5283. 

47  Rev.  Laws  1910,  §  5285. 

48  Crane  v.  Lowe,  54  P.  666,  59  Kan.  606. 

(187) 


,*• 

§§    312-314  ABATEMENT,  SURVIVAL  AND    EEVIVOB  (Ch.  6 

died,  or  whose  powers  ceased,  and  proceed  in,  favor  of  or  against 
them."  " 

Under  this  statute  an  application  within  a  year  from  defendant's 
death  to  revive  the  action  against  his  representative  must  be  grant- 
ed as  a  matter  of  right.50 

§  313.    Who  may  move 

"The  order  may  be  made  on  the  motion  of  the  adverse  party,  or 
of  the  representatives  or  successor  of  the  party  who  died,  or  whose 
power  ceased,  suggesting  his  death  or  the  cessation  of  his  powers, 
which,  with  the  names  and  capacities  of  his  representatives  or  suc- 
cessor, shall  be  stated  in  the  order."  " 

§  314.     Consent  or  notice  <• 

"If  the  order  is  made  by  the  consent  of  the  parties,  the  action 
shall  forthwith  stand  revived ;  and,  if  not  made  by  consent,  notice 
of  the  application  for  such  order  shall  be  served  in  the  same  man- 
ner and  returned  at  the  same  time  as  a  summons,  upon  the  party 
adverse  to  the  one  making  the  motion;  and  if  sufficient  cause  be 
not  shown  against  the  revivor,  the  order  shall  be  made." 82 

Where  a  judgment  was  rendered  for  defendant,  and  before  per- 
fecting appeal  plaintiff  died,  and  the  cause  was  revived  in  plain- 
tiff's administrator's  name,  without  consent  and  without  notice, 
the  revivor  below  was  illegal.53 

No  consent  is  necessary  to  revive  action  within  one  year  from 
time  order  might  have  been  first  made,  and,  if  made  with  consent, 
no  notice  is  required.  Where  order  to  revive  action  is  made  within 
year  from  time  when  it  might  first  have  been  made,  without  con- 
sent, notice  and  service  required  by  Rev.  Laws  1910,  §  5288,  be- 
come jurisdictional  and  mandatory.  An  order  of  revivor,  made  by 
trial  court  within  a  year,  but  without  notice  and  without  consent, 
is  absolutely  void.54 

Appearance  waives  notice  of  application  to  revive  an  action.55 

49  Rev.  Laws  1910,  §  5286. 

BoKilgore  v.  Yarnell,  103  P.  698,  24  Old.  525;    Eoyes  V.  Masters,  114  P. 
710,  28  Okl.  409,  33  L.  R.  A.  (N.  S.)  576. 
ci  Rev.  Laws  1910,  §  5287. 
62  Rev.  Laws  1910,  §  5288. 

es  Olds  v.  Atchison,  T.  &  S.  F.  Ry.  Co.  (Okl.)  175  P.  230, 
54  Zahn  v.  Obert,  60  Okl.  118,  159  P.  298. 
»6  Crites  v.  City  of  Miami,  80  Okl.  50,  193  P.  984,      . 

(188)        • 


Art.  2)  REVIVOB  §§  315-316 

§  315.    Notice  by 'publication 

"When  the  plaintiff,  shall  make  an  affidavit  that  the  representa- 
tives of  the  defendant,  or  any  of  them,  in  whose  name  it  is  desired 
to  have  the  action  revived,  are  non-residents  of  the  State,  or  have 
left  the  same  to  avoid  the  service  of  the  order  or  notice,  or  so  con- 
cealed themselves  that  the  order  or  notice  cannot  be  served  upon 
them,  or  that  the  names  and  residence  of  the  heirs  or  devisees  of 
the  person  against  whom  the  action  may  be  ordered  to  be  revived, 
or  some  of  them,  are  unknown  to  the  affiant,  a  notice  may  be  pub- 
lished for  three  consecutive  weeks,  notifying  them  to  appear  on  a 
day  therein  named,  not  less  than  ten  days  after  the  publication  is 
complete,  arid  show  cause  why  the  action  should  not  be  revived 
against  them;  and,  if  sufficient  cause  be  not  shown  to  the  con- 
trary, the  order  shall  be  made."  58 

§  316.     Death  of  plaintiff 

"Upon  the  death  of  the  plaintiff  in  an  action,  it  may  be  revived 
in  the  names  of  his  representatives,  to  whom  his  right  has  passed. 
Where  his  right  has  passed  to  his  personal  representatives,  the 
revivor  shall  be  in  their  names;  where  it  has  passed  to  his  heirs 
or  devisees,  who  could  support  the  action  if  brought  anew,  the 
revivor  may  be  in  their  names."  " 

Under  this  statute,  an  order  of  revivor  of  an  action  relating  to 
personal  property  in  the  names  of  heirs  of  deceased  party  is  a 
nullity.68 

Where  plaintiff  in  replevin  dies  intestate,  the  action  must  be  re- 
vived in  the  name  of  his  administrator,  and  not  of  his  heirs  at 
law.59 

Where  a  judgment  creditor  dies  pending  appeal,  the  judgment 
will  not  be  revived  on  application  of  assignees  of  his  judgment  who 
are  strangers  to  record  over  objection  of  plaintiffs  in  error,  who 
seek  revivor  in  name  of  administrator,  when  the  latter  would  not 
prejudice  assignees  or  decedent's  estate.60 

ee  Rev.  Laws  1910,  §  5289. 

87  Rev.  Laws  1910,  §  5290. 

es  Zahn  v.  Obert,  60  Okl.  118,  159  P.  298. 

eaRexroad  v.  Johnson,  45  P.  1008,  4  Kan.  App.  333. 

«  Schuber  v.  HcDuft'ee,  59  Okl.  253,  158  P.  895, 

(189) 


§§   317-318  ABATEMENT,  SURVIVAL  AND   REVIVOR  (Ch.  6 

§  317.     Death  of  defendant 

"Upon  the  death  of  a  defendant  in  an  action,  wherein  the  right, 
or  any  part  thereof,  survives  against  his  personal  representatives, 
the  revivor  shall  be  against  them ;  and  it  may,  also  be  against  the 
heirs  and  devisees  of  the  defendant,  or  both,  when  the  right  of  ac- 
tion, or  any  part  thereof,  survives  against  them."  61 

"Upon  the  death  of  a  defendant  in  an  action  for  the  recovery  of 
real  property  only,  or  which  concerns  only  his  rights  or  claims  to 
such  property,  the  action  may  be  revived  against  his  heirs  or  devi- 
sees, or  both,  and  an  order  therefor  may  be  forthwith  made,  in 
the  manner  directed  in  the  preceding  section  of  this  article."  62 

The  court  has  discretionary  power  to  revive,  after  death  of  de- 
fendant, an  action  to  foreclose  a  mechanic's  lien,  and  to  carry 
same  forward  to  final  judgment.63 

§  318.     Limitation 

"An  order  to  revive  an  action  against  the  representatives  or -suc- 
cessor of  a  defendant  shall  not  be  made  without  the  consent  of 
such  representatives  or  successors,  unless  in  one  year  from  the 
time  it  could  have  been  first  made,  except  as  otherwise  provided 
by  law."  64 

An  order  to  revive  against  representatives  or  successors  of  a 
deceased  defendant  cannot,  in  the  absence  of  exceptional  circum- 
stances or  special  statute,  be  made  without  consent,  unless  made 
within  one  year  after  it  could  have  first  been  made.65 

The  time  within,  which  an  action  may  be  revived  against  the 
representatives  or  successor  of  a  deceased  defendant,  is  a  condi- 
tion of  the  right  to  revive,  and  a  party  seeking  to  avail  himself  of 
its  benefits  must  strictly  comply  with  its  terms.66  It  does  not  de- 
prive the  court  of  all  discretion  in  the  matter." 

«i  Rev.  Laws  1910,  §  5291. 

«»2  Rev.  Laws  1910,  §  5292. 

63  Glenn  v.  Payne,  48  Okl.  196,  149  P.  1151. 

«*  Rev.  Laws  1910,  §  5293. 

es  Adams  v.  Higgins,  47  Okl.  323,  147  P.  1011. 

ee  Steinbach  v.  Murphy,  78  P.  823,  70  Kan.  487. 

67  Glenn  v.  Payne,  48  Okl.  196,  149  P.  1151. 

Wilson's  Rev.  &  Ann.  St.  1903,  §  4624,  fixing  one  year  as  the  time  within 
which  an  action  may  be  revived  in  the  names  of  the  representatives  or  suc- 
cessors of  the  plaintiff,  is  not  a  mere  limitation,  but  conditions  the  right  to 
revive,  and  parties  seeking  to  avail  themselves  of  the  benefits  must  comply 
with  these  terms.  Glazier  v.  Heneybuss,  91  P.  872,  19  Okl.  316S 

(190) 


Art.  2)  REVIVOR  §§  318-320 

The  fact  that  a  district  court,  eight  months  after  the  time  when 
an  order  reviving  an  action  against  the  representatives  or  suc- 
cessors of  a  deceased  defendant  first  could  have  been  made,  erro- 
neously decided  that  it  had  no  jurisdiction,  will  not  excuse  a  failure 
to  revive  within  one  year,  when  no  attempt  was  made  to  prosecute 
an  order  of  revivor  before  the  jurisdiction  given  was  determined.68 

Where  executors  of  a  plaintiff  filed  a  motion  to  revive  an  ac- 
tion more  than  one  year  after  the  time  when  the  order  might  have 
been  made,  the  filing  of  a  brief  in  the  action  by  defendant  was  not 
a  consent  to  a  revivor.69 

The  period  of  limitation  commences  to  run,  in  a  case  where  an 
administrator  is  the  proper  party  to  be  substituted,  not  until  an 
administrator  has  been  appointed.70 

§  319.    Amendment  to  petition 

When  an  action  is  revived  in  the  name  of  the  personal  repre- 
sentative of  the  deceased  plaintiff,  the  petition  originally  filed 
should  be  amended  so  as  to  allege,  in  an  issuable  form,  his  repre- 
sentative capacity,  and  the  appointment  or  authority  under  which 
he  proceeds ;  and,  failing  in  this,  no  right  to  maintain  the  action  is 
shown,  and  an  objection  to  the  introduction  of  any  testimony  un- 
der the  petition  should  be  sustained.71 

An  action  to  recover  possession  of  real  estate  cannot  be  main- 
tained, after  the  death  of  defendant,  without  amending  the  petition 
by  substituting  the  widow  and  heirs  of  deceased  as  parties  de- 
fendant.72 

§  320.     Time  of  order 

"An  order  to  revive  an  action,  in  the  names  of  the  representa- 
tives or  successor  of  a  plaintiff,  may  be  made  forthwith,  but  shall 
not  be  made  without  the  consent  of  the  defendant,  after  the  expira- 
tion of  one  year  from  the  time  the  order  might  have  been  first 
made;  but  where  the  defendant  shall  also  have  died,  or  his  pow- 
ers have  ceased,  in  the  meantime,  the  order  of  revivor,  on  both 
sides,  may  be  made  in  the  period  limited  in  the  last  section :  Pro- 
vided, that  where  the  death  of  a  party  is  not  known  or  for  other 

«s  Glazier  v.  Heneybuss,  91  P.  872,  19  Okl.  316. 

6»  Houghton  v.  Lannon,  40  P.  819,  1  Kan.  App.  510. 

TO  Rexroad  v.  Johnson,  45  P.  1008,  4  Kan.  App.  333. 

11  Central  Branch  U.  P.  Ry.  Co.  v.  Andrews,  9  P.  213,  34  Kan.  563. 

72  Douglass  v.  Galend,  76  P.  395,  69  Kan.  846. 

(191) 


§§   321-323          ABATEMENT,  SURVIVAL  AND  EEVTVOB  (Ch.  6 

unavoidable  reasons  the 'court  may  permit  the  reviver  within  a 
reasonable  time  thereafter."  78 

§  321.     Delay  to  revive 

Where  a  party  to  an  action  has  been  dead  for  a  period  so  long 
that  the  action  cannot  be  revived  without  the  consent  of  parties, 
which  is  not  given,  the  action  abates.74 

Where  defendant  in  error  dies,  and  no  proceedings  were  had  to 
revive  the  case  in  the  name  of  the  administrators,  and  they  refuse 
to  consent  to  a  revivor,  the  proceedings  will  be  dismissed.78 

§  322.     Vacation  of  order 

The  setting  aside  of  an  order  of  revivor  for  irregularities  in  pro- 
curing it  was  not  a  final  determination  of  plaintiff  administrator's 
right  to  revive,  and  left  his  motion  to  revive  still  pending.  Where 
an  administrator  obtained  an  order  of  revivor,  and  defendant's  mo- 
tion to  vacate  such  order  was  sustained,  and  motion  for  new  trial 
on  motion  to  vacate  was  overruled,  and  plaintiff  then  served  notice 
of  motion  to  revive  action,  the  vacation  of  the  order  of  revivor 
was  not  a  final  determination  of  the  right  to  revivor,  and  left  the 
motion  to  revive  pending.76 

§  323.     Objections  and  waiver 

An  objection  that  a  case  is  not  properly  revived  must  be  made 
before  an  appearance  to  the  merits;  such  appearance  constituting 
a  waiver  of  any  defect  in  the  mode  of  revival.77 

Where  a  corporation,  pending  a  suit  against  it,  was  consolidated 
with  other  corporations,  and  plaintiff  filed  a  pleading  against  the 
consolidated  company  designated  as  an  "Amended  Petition,"  but 
in  the  form  of  an  original  petition,  and  process  was  issued  and 
served  as  in  an  original  action,  it  was  too  late  to  object  in  the  an- 
swer for  the  first  time  that  there  had  not  been  a  formal  revivor  and 
substitution;  defendant  having  in  the  meantime  demurred  to  the 


T»  Rev.  Laws  1910,  §  5294. 

An  order  to  revive  action  cannot,  without  consent,  be  made  at  all  more 
than  one  year  from  time  it  might  first  have  been  made.  Zahn  v.  Obert,  60 
Okl.  118,  159  P.  298. 

7  *  New  Hampshire  Banking  Co.  v.  Ball,  48  P.  137,  57  Kan.  812. 

78  Helfenstein  v.  Sage,  58  P.  243,  9  Kan.  App.  889. 

i«  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Forrester  (Okl.)  177  P.  593,  8  A.  L.  R.  163. 

77  Pioneer  Telegraph  &  Telephone  Co.  v.  Davis,  116  P.  432,  28  Okl.  783. 

(192) 


Art.  2)  REVIVOR  §§  324-327 

new  pleading,  and  moved  to  strike  it  from  the  files,  because  it  was 
for  a  new  cause  of  action.78 

§  324.     Action  dismissed,  when 

"When  it  appears  to  the  court,  by  affidavit,  that  either  party  to 
an  action  has  been  dead  for  a  period  so  long  that  the  action  can- 
not be  revived  in  the  names  of  his  representatives  or  successors 
without  the  consent  of  both  parties,  or,  when  a  party  sues  or  is 
sued  as  a  personal  representative,  that  his  powers  have  ceased,  the 
court  shall  order  the  action  to  be  dismissed  at  the  costs  of  the 
plaintiff."  7» 

§  325.    At  instance  of  defendant 

"At  any  term  of  the  court  succeeding  the  death  of  the  plaintiff, 
while  the  action  remains  on  the  docket,  the  defendant  having  giv- 
en the  plaintiff's  proper  representatives,  in  whose  name  the  action 
might  be  revived,  ten  days'  notice  of  the  application  therefor,  may 
have  an  order  to  strike  the  order  from  the  docket,  and  for  costs 
against  the  estate  of  the  plaintiff,  unless  the  action  is  forthwith 
revived."  80 

§  326.    Trial 

"When,  by  the  provisions  of  the  preceding  sections,  an  action 
is  revived,  the  trial  thereof  shall  not  be  postponed  by  reason  of  the 
revivor,  if  the  action  would  have  stood  for  trial  at  the  term  the 
revivor  is  complete,  had  no  death  or  cessation  of  powers  taken 
place."  81 

§  327.     Death  after  judgment 

"If  either  or  both  parties  die  after  judgment,  and  before  satis- 
faction thereof,  their  representatives,  real  or  personal,  or  both,  as 
the  case  may  require,  may  be  made  parties  to  the  same,  in  the 
same  manner  as  prescribed  for  reviving  actions  before  judgment; 
and  such  judgment  may  be  rendered,  and  execution  awarded,  as 
might  or  ought  to  be  given  or  awarded  against  the  representatives, 
real  or  personal,  or  both,  of  such  deceased  party."  8a 

78  Curry  v.  Kansas  &  C.  P.  Ry.  Co.,  48  P.  579,  58  Kan.  6. 
T»  Rev.  Laws  1910,  §  5205. 
so  Rev.  Laws  1910,  §  5296. 
«i  Rev.  Laws  1910,  §  5297. 
82  Rev.  Laws  1910,  §  5299. 

HON.PL.&  PRAC.— 13  (193) 


§    328  ABATEMENT,  SURVIVAL  AND   BEVIVOB  (Ch.  6 

§  328.     Revivor  of  judgment — Forms 

"If  a  judgment  become  dormant,  it  may  be  revived  in  the  same 
manner  as  is  prescribed  for  reviving  actions  before  judgment."  88 

MOTION  FOR  REVIVOR  OF  JUDGMENT 

(Caption.) 

Comes  now  the  plaintiff,  A.  B.,  and  respectfully  represents  and 

shows  to  the  court  that  heretofore,  to  wit ;    on  the  day  of 

,  19 — ,  the  above-named  plaintiff  obtained  judgment  in  this 

court  against  the  defendant,  C.  D.,  for  the  sum  of dollars, 

to  bear  interest  at  the  rate  of per  cent,  per  annum  from  the 

date  of  said  judgment,  and  the  costs  of  said  action  taxed  at 

dollars,  which  said  judgment  is  cited  and  made  a  part  hereof. 

That  said  judgment  remains  due  and  wholly  unpaid;  that  by 
operation  of  law  the  said  judgment  has  become  dormant. 

Wherefore  plaintiff  moves  the  court  that  said  judgment  be  by 
the  order  of  this  court  revived  against  the  defendant,  and  for  all 
other  proper  relief  in  the  premises. 

X.  Y.,  Attorney  for  Plaintiff. 

NOTICE  OP  MOTION  FOR  REVIVOR  OF  JUDGMENT 

(Caption.) 
To  C.  D.,  Defendant,  and  His  Attorney  of  Record,  G.  H.t 

You  will  take  notice  that  the  plaintiff  has  filed  in  the  office  of 
the  court  clerk  of  the  above  named  court  his  motion  for  a  revivor 
of  a  certain  judgment  therein  referred  to  and  cited,  a  copy  of  which 
motion  is  hereto  attached,  and  that  the  same  will  be  called  up  for 

hearing  on  said  motion  on  the  day  of  ,  19 — ,  or  as 

soon  thereafter  as  the  court  can  hear  the  same. 

X.  Y.,  Attorney  for  Plaintiff. 

ORDER  REVIVING  JUDGMENT 

(Caption.) 

Now  on  this  day  of  ,  19 — ,  this  cause  coming  on 

to  be  heard  on  the  motion  of  A.  B.,  plaintiff,  to  revive  the  judg- 
ment heretofore  entered  herein,  the  plaintiff  appearing  by  his  at- 
torney, X.  Y.,  and  the  said  defendant,  C.  D.,  though  duly  served 

88  Rev.  Laws  1910,  §  53UQ. 
(194) 


Art.  2)  REVIVOR  §  328 

with  notice  of  the  filing  and  hearing  of  said  motion,  came  not  but 
wholly  made  default;  and  the  court,  having  heard  the  evidence, 
and  being  fully  advised  in  the  premises,  finds: 

That  heretofore,  to  wit,  on  the  day  of ,  19 — ,  the 

above-named  plaintiff  obtained  judgment  in  this  court  against  the 

defendant,  C.  D.,  for  the  sum  of dollars,  to  bear  interest  at 

the  rate  of per  cent,  per  annum  from  the  date  of  said  judg- 
ment, and  the  costs  of  said  action  taxed  at  dollars;  that 

said  judgment  is  wholly  unpaid,  and  that  there  is  now  due  on  said 

judgment  from  defendant  to  plaintiff  the  sum  of  dollars; 

that  said  judgment  has  become  dormant  by  elapse  of  time,  and 
that  more  than  five  years  has  elapsed  since  the  rendition  of  said 
judgment,  and  that  less  than  one  year  has  elapsed  since  said  judg- 
ment became  dormant. 

It  is  therefore  by  the  court  ordered,  adjudged,  and  decreed  that 
said  judgment  be  and  the  same  is  hereby  revived  for  the  sum  of 

dollars,  with  interest  at per  cent,  from : — ,  19 — , 

and  for  the  costs  included  in  said  judgment,  $ ,  and  for  costs 

herein. 

,  Judge. 

(195) 


§§  329-330  LIMITATIONS  (Ch.  7 

CHAPTER  VII 

LIMITATIONS 

Sections 

329-342.  Article  I — Purpose,   validity,  and   operation. 

343-344.  Article  II. — Commencement  of  action. 

345-360.  Article  III. — When  statute  begins  to  run. 

361-378.  Article  IV — Limitation  periods. 

379-391.  Article  V. — Suspension  and  tolling  of  statute. 

392-397.  Article  VI. — Extension  and  waiver. 

398-400.  Article  VII— Contract  limitations. 

ARTICLE  I 

PURPOSE,  'VALIDITY,  AND  OPERATION 

Sections 

329.  Purpose  and  validity  of  statutes. 

330.  What  law  governs — Foreign  laws. 

331.  Construction  and  operation. 

332.  Retroactive  operation. 

333.  Actions  already  barred. 

334.  As  against  state,  municipality,  or  public  officers. 

335.  Will  contest. 

336.  As  to  defenses  in  general. 

337.  As  to  set-off  or  counterclaim. 

338.  Computation  of  time. 

339.  Bar  absolute — Operation  in  general. 

340.  Debt  of  husband  and  wife. 

341.  Replevin. 

342.  Foreclosure. 

§  329.     Purpose  and  validity  of  statutes  » 

Statutes  of  limitations  are  statutes  of  repose,  the>  object  of  which 

is  to  prevent  fraudulent  and  stale  actions  from  springing  up  after  a 

great  lapse  of  time.1 

A  statute  operating  to  extend  the  time  for  suing  on  causes  of 

action  which  were  not  barred  at  its  passage,  is  not  for  that  reason 

invalid.2 

§  330.     What  law  governs — Foreign  laws 

"Where  the  cause  of  action  has  arisen  in  another  state  or  coun- 
try, between  nonresidents  of  this  state,  and  by  the  laws  of  the  state 

1  Adams  v.  Coon,  129  P.  851,  36  Okl.  644,  44  L.  R.  A.  (N.  S.)  624. 

2  Schnell  v.  Jay,  46  P.  598,  4  Okl.  157. 

(196) 


Art.  1)  PURPOSE,  VALIDITY,  AND   OPERATION  §    330 

or  country  where  the  cause  of  action  arose,  an  action  cannot  be 
maintained  thereon  by  reason  of  a  lapse  of  time,  no  action  can  be 
maintained  thereon  in  this  state;  and  no  action  can  be  maintained 
in  this  state  on  any  judgment  or  decree  rendered  in  another  state 
or  country  against  a  resident  of  this  state,  where  the  cause  of  ac- 
tion upon  which  such  judgment  or  decree  was  rendered  could  not 
have  been  maintained  in  this  state  at  the  time  the  action  thereon 
was  commenced  in  such  other  state  or  country,  by  reason  of  lapse 
of  time."  3 

This  statute  applies  only  where  the  cause  of  action  arose  be- 
tween nonresidents  of  the  state,  which  fact  must  be  pleaded.4  The 
words  "when  a  cause  of  action  has  arisen"  in  a  foreign  state  mean 
when  the  plaintiff  has  a  right  to  sue  the  defendant  in  the  courts  of 
such  foreign  state,  and  have  no  reference  to  the  origin  of  the  trans- 
action out  of  which  the  cause  of  action  arose.5 

3  Rev.  Laws  1910,  §  4661. 

The  limitations  of  the  state  apply  unless  the  statute  of  another  state  or 
country  is  pleaded.  Perry  v.  Robertson,  150  P.  223,  93  Kan.  703. 

An  action  to  foreclose  a  mortgage  given  as  security  for  the  payment  of  notes 
executed  by  nonresidents  of  Kansas,  payable  in  another  state,  and  not  barred 
by  the  five-year  statute  of  limitations  of  Kansas  will  be  controlled  as  to  its 
limitation  by  the  statute  of  the  state  where  the  mortgage  and  notes  were  ex- 
ecuted and  are  payable.  Croocker  v.  Pearson,  21  P.  270,  41  Kan.  410. 

Under  Civ.  Code,  §  21  (Gen.  St.  1909,  §  5614),  where  a  cause  of  action  ac- 
crues in  another  state  between  nonresidents  of  Kansas,  and  the  obligor  comes 
to  Kansas  before  the  action  has  been  barred  by  the  statute  of  the  other  state, 
the  Kansas  statute  of  limitations  runs  in  his  behalf,  and  unless  interrupted 
within  five  years  creates  a  bar.  Perry  v.  Robertson,  150  P.  223,  93  Kan.  703. 

Indian  Territory.— Where  note  was  executed  and  payable  in  Indian  Terri- 
tory, limitations  prescribed  by  Mansfield's  Dig.  Ark.  §  4483,  and  not  the  laws 
of  Oklahoma  Territory,  extended  over  the  state  by  Constitution,  applied  in  an 
action  in  the  state  of  Oklahoma.  Patterson  v.  Rousney,  58  Okl.  185,  159  P.  636. 

Ten-year  limitation  prescribed  by  Mansf.  Dig.  Ark.  §  4487,  applies  to  actions 
on  judgment  of  United  States  court  for  Indian  Territory.  Davis  v.  Foley, 
60  Okl.  87,  159  P.  646,  L.  R.  A.  1917A,  187. 

An  action  in  the  state  court  on  a  judgment  rendered  in  a  United  States  com- 
missioner's court  in  the  Indian  Territory,  is  governed  as  to  limitations  by  the 
laws  in  force  when  the  judgment  was  rendered.  Maine  v.  Edmonds,  58  Okl. 
645,  160  P.  483. 

Where  lessee  claimed  possession  of  lands  under  99-year  lease  from  an  Indi- 
an dated  January,  1902,  executed  in  Indian  Territory,  where  defendant  had 
been  in  adverse  possession  March,  1907,  lessee's  action  to  recover  possession 
November,  1915,  was  barred  by  limitations,  for  Mansf.  Dig.  §  446,  was  in  force 
in  the  territory  in  1907,  and  the  admission  of  the  state  did  not  operate  to  sub- 
stitute a  different  statute.  Bilby  v.  Diamond  (Okl.)  174  P.  758. 

*  Croan  v.  Baden,  85  P.  532,  73  Kan.  364. 

5  Bruner  v.  Martin,  93  P.  165,  76  Kan.  862,  14  L.  R.  A.  (N.  S.)  775,  123  Am. 

(197) 


§§  330-331  LIMITATIONS  (Ch.  7 

A  cause  of  action  on  a  contract  made  in  Kansas  barred  by  the 
statutes  of  Nebraska  while  defendant  resided  there,  is  not  barred 
in  Oklahoma,  if  not  barred  by  the  laws  of  Kansas  or  Oklahoma.6 

The  law  of  the  forum  ordinarily  governs  in  respect  to  limitation 
of  actions.7 

§  331.     Construction  and  operation 

Statutes  of  limitation,  being  statutes  of  repose,  should  be  so  con- 
strued as  to  advance  the  policy  they  are  designed  to  promote.8 

The  enumeration  by  the  Legislature  of  specific  exceptions  to  a 
statute  of  limitations  excludes  all  others.9 

In  construing  a  statute  of  limitations,  it  must,  so  far  as  it  affects 
rights  of  action  in  existence  when  the  statute  is  passed,  be  held,  in 
the  absence  of  a  contrary  provision,  to  begin  when  the  cause  of  ac- 
tion is  first  subjected  to  its  operation.10 

Where  a  cause  of  action  arose  in  another  state,  the  statute  of 
limitations  does  not  begin  to  run  against  it  until  the  debtor  becomes 
a  resident  of  Oklahoma.11 

The  right  to  sue  to  remove  a  cloud  is  a  continuing  one,  to  which 
the  statute  of  limitations  is  not  applicable.12 

St.  Rep.  172,  14  Ann.  Cas.  39.  A  cause  of  action  on  a  note  cannot  be  main- 
tained in  Kansas  where  both  plaintiff  and  defendant  were  nonresidents  of 
Kansas  when  the  cause  of  action  accrued,  and  defendant  resided  in  a  foreign 
state  until  the  cause  of  action  was  barred  by  the  laws  of  that  state.  Id.; 
Keagy  v.  Wellington  Nat.  Bank,  69  P.  811,  12  Okl.  33 ;  Stock  Exch.  Bank  v. 
Wykes,  129  P.  1131,  88  Kan.  750. 

e  Doughty  v.  Funk,  84  P.  484,  15  Okl.  643,  4  L.  R.  A.  (N.  S.)  1029. 

7  Gaier  &  Stroh  Millinery  Co.  v.  Hilliker,  52  Okl.  74,  152  P.  410. 

An  action  on  contract  is  generally  governed  by  statute  of  limitations  of  the 
forum,  and  not  by  the  lex  loci  contractus  or  the  lex  domicilii.  Shaw  v.  Dick- 
inson (Okl.)  164  P.  1150. 

An  action  to  enforce  the  individual  liability  of  a  stockholder  in  a  national 
bank  is  governed  by  the  statute  of  limitations  of  the  state  in  which  the  action 
is  brought.  Rankin  v.  Barton,  77  P.  531,  69  Kan.  629,  judgment  reversed,  26 
S.  Ct.  29,  199  U.  S.  228,  50  L.  Ed.  163. 

s  Atchison,  T.  &  S.  F.  R.  Co.  v.  Burlingame  Tp.,  14  P.  271,  36  Kan.  628,  59 
Am.  Rep.  578. 

»  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Atchison  Grain  Co.,  75  P.  1051,  68  Kan.  585, 
1  Ann.  Cas.  639,  modifying  judgment  70  P.  933,  on  rehearing. 

10  Huber  v.  Zimmerman,  58  P.  737,  8  Okl.  573. 

11  Richardson  v.  Mackay,  46  P.  546,  4  Okl.  328. 

The  statute  of  limitations  adopted  from  Nebraska  for  Oklahoma  by  the  or- 
ganic act  did  not  begin  to  run,  as  against  causes  of  action  existing  at  its  adop- 
tion, until  that  event.  Schnell  v.  Jay,  46  P.  598,  4  Okl.  157. 

12  Cooper  v.  Rhea,  107  P.  799,  82  Kan.  109,  29  L.  R.  A.  (N.  S.)  930,  136  Am. 
St.  Rep.  100,  20  Ann.  Cas.  42. 

(198) 


Art.  1)  PURPOSE,  VALIDITY,  AND   OPERATION  §§    331~332 

A  person  cannot  prevent  the  operation  of  the  statute  of  limita- 
tions by  delay  in  taking  action  incumbent  upon  him.13 

§  332.    Retroactive  operation 

Statutes  of  limitations  are  matters  of  procedure  and  not  of  sub- 
stantive "right,"  within  the  protection  of  Constitution,  Schedule, 
§  1,  preserving  existing  rights.14 

A  statute  of  limitation  must,  so  far  as  affecting  rights  of  action 
in  existence  when  enacted,  be  held  to  begin  when  the  right  of 
action  is  first  subjected  to  its  operation.15  Such  statute  is  never 
given  a  retroactive  operation,  unless  it  appears  clearly  that  such 
was  the  legislative  intent.16 

A  repeal  of  the  statute  and  the  enactment  of  a  new  statute,  have 
the  effect  of  renewing  actions  that  have  not  expired  before  the  new 
statute  takes  effect.17  But  a  statute  of  limitations  which  repeals  a 
former  statute  on  the  same  subject  does  not  revive  an  action  which 
has  been  barred  by  the  former  statute,  if  it  is  apparent  from  a 
reading  of  the  later  statute  that  such  was  not  the  legislative  in- 
tent.18 

is  Glazier  v.  Heneybuss,  91  P.  872,  19  Okl.  316. 

i*  Anderson  v.  Kennedy  (Okl.)  152  P.  123.  The  two-year  statute  of  limita- 
tions (Rev.  Laws  1910,  §  4657),  existing  when  an  action  for  breach  of  warranty 
and  based  on  fraud  was  commenced,  controlled,  and  not  the  three-year  lim- 
itation prescribed  by  the  Indian  Territory  statute  (Carter's  St.  1899,  §  2945), 
which  was  in  force  when  the  cause  of  action  accrued.  Id. 

IB  In  re  Mosher,  102  P.  705,  24  Okl.  61,  24  L.  R.  A.  (N.  S.)  530,  20  Ann. 
Gas.  209. 

IB  Sess.  Laws  1905,  p.  328,  c.  28,  §  3,  art.  7,  providing  that  set-off  or  counter- 
claim shall  not  be  barred  by  limitations  until  the  claim  of  the  plaintiff  is  so 
barred,  only  affects  set-off  or  counterclaim  existing  at  the  time  of  its  passage, 
and  did  not  revive  a  set-off  already  barred  by  a  former  statute.  Theis  v. 
Board  of  Beaver  County  Com'rs,  97  P.  973,  22  Okl.  333. 

IT  Huber  v.  Zimmerman,  58  P.  737,  8  Okl.  573. 

St.  1893,  c.  66,  art.  3,  §  18,  providing  for  the  time  in  which  actions  must  be 
brought,  renews  the  causes  of  action  which  have  hot  expired  under  the  1890 
statute  of  limitations,  the  legislature  not  having  otherwise  provided.  South- 
gate  v.  Frier,  57  P.  841,  8  Okl.  435. 

is  Fuller  &  Fuller  Co:  v.  Johnson,  58  P.  745,  8  Okl.  601. 

Omission  of  Comp.  Laws  1909,  §  267,  fixing  a  limitation  of  one  year  for 
commencement  of  proceedings  for  disbarment,  from  Revised  Laws  of  1910, 
which  became  effective  May  16,  1913,  did  not  toll  the  statute  of  limitations  as 
to  disbarment  of  attorney  for  acts  committed  from  May  to  September,  1912, 
since  act  approved  March  3,  1911  (Laws  1911,  c.  39),  adopting  Revised  Laws 
of  1910,  provided  that  running  of  statute  of  limitations  should  not  be  affected 
thereby.  In  re  Huddleston,  75  Okl.  48,  181  P.  711.- 

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§§  333-335  LIMITATIONS  (Ch.  7 

§  333.    Actions  already  barred 

"Any  right  of  action,  which  shall  have  been  barred  by  any  stat- 
ute heretofore  in  force,  shall  not  be  deemed  to  be  revived  by  the 
provisions  of  this  article,  nor  shall  the  prior  statutes  of  limitation 
be  extended  as  to  any  cause  of  action  which  has  accrued  prior  to 
the  time  this  article  shall  take  effect."  19 

§  334.    As  against  state,  municipality,  or  public  officers 

Limitations  do  not  run  against  the  state  unless  expressly  so  pro- 
vided by  statute.20 

Limitations  do  not  run  against  the  state  where  the  state,  though 
not  the  real  party  to  the  record,  is  the  real  party  in  interest.21 

The  maxim,  "nullum  tempus  occurrit  regi,"  extends  to  public 
rights,  and  applies  to  municipal  corporations  as  trustees  of  the 
rights  of  the  public,  and  protects  from  invasion  the  property  of  the 
municipality  held  for  public  use,  no  matter  how  lax  the  municipal 
authorities  have  been  in  asserting  the  rights  of  the  public.22 

But  a  county's  action  for  money  illegally  paid  in  excess  of  the 
salary  of  its  county  attorney  is  subject  to  the  statute  of  limita- 
tions.23 

§  335.    Will  contest 

If  one  is  prevented  from  contesting  will  at  the  probate  thereof, 


IB  Rev.  Laws  1910,  §  4653. 

20  White  v.  State,  50  Okl.  97,  150  P.  716;   White  v.  State,  50  Okl.  104,  150 
P.  718 ;   State  v.  Dixon,  135  P.  568,  90  Kan.  594,  47  L.  R.  A.  (N.  S.)  905 ;   State 
v.  Moore,  136  P.  233,  90  Kan.  751;  Board  of  Coin'rs  of  Douglas  County  v.  Oity 
of  Lawrence,  171  P.  610,  102  Kan.  656;    State  v.  School  District,  8  P.  208,  34 
Kan.  237. 

21  Anderson  v.  Ritterbusch,  98  P.  1002,  22  Okl.  761. 

22  Foote  v.  Town  of  Watonga,  130  P.  597,  37  Okl.  43. 

The  rule  that  statutes  of  limitations  do  not  apply  to  actions  by  the  state, 
unless  a  legislative  intent  that  they  shall  do  so  is  shown  by  express  language 
or  appears  by  the  clearest  implication,  applies  to  subordinate  political  bodies, 
including  municipal  corporations  with  respect  to  any  litigation  to  enforce 
governmental  rights.  City  of  Osawatomie  v.  Board  of  Coin'rs  of  Miami  Coun- 
ty, 96  P.  670,  78  Kan.  270,  130  Am.  St.  Rep.  369.  Where  a  county  diverts  to 
its  own  treasury  a  part  of  the  money  it  has  collected  on  taxes  levied  by  city, 
no  limitations  run  against  an  action  by  the  city  to  recover  the  amount  so 
wrongfully  withheld.  Id. 

2  s  Board  of  Com'rs  of  Woodward  County  v.  Willett,  49  Okl.  254,  152  P. 
365,  L.  R.  A.  1916E,  92 ;  Rev.  L.  §  4657. 

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Art.  1)  PURPOSE,  VALIDITY,  AND  OPERATION  §§    335-337 

he  may  do  so  within  one  year  after  disability  is  removed,  after 
which  time  the  right  is  lost.24 

The  statutes  relieve  an  infant  of  the  diligence  required  of  adults 
under  the  prior  section  to  contest  the  probate  of  a  will  within  one 
year,  or  show  that  the  evidence  relied  on  was  discovered  since  the 
probate  of  the  will.25 

§  336.      As  to  defenses  in  general 

Statutes  of  limitation  are  not  applicable  to  mere  defenses.28 

§  337.    As  to  set-off  or  counterclaim 

A  counterclaim  pleaded  as  a  defense,  or  a  set-off  pleaded  for  the 
purpose  of  liquidating  the  whole  or  a  part  of  plaintiff's  claim,  is 
not  barred  by  the  statutes  of  limitations  until  the  claim  or  the  de- 
mand of  the  plaintiff  is  barred,27  unless  defendant's  claim  «was 
completely  barred  before  the  claim  of  plaintiff  was  created.28 

24  Cooper  v.  Newcomb  (Okl.)  174  P.  1029;  Rev.  Laws  1910,  §§  6219,  6225.. 

25  Scott  v.  McGirth,  139  P.  519,  41  Okl.  520. 

1  26  Muckenthaler  v.  Noller  (Kan.)  180  P.  453.  Code  Civ.  Proc.  §  24  (Gen.  St. 
1915,  §  6914),  providing  that  a  barred  right  of  action  cannot  be  used  as  a  de- 
fense, applies  to  set-off  or  counterclaim  or  affirmative  relief,  and  not  to  mat- 
ters of  pure  defense.  Id.  An  instrument  or  contract  upon  which  an  action 
or  right  is  based  may  be  attacked  for  fraud  after  time  prescribed  by  Code 
Civ.  Proc.  §  17  (Gen.  St.  1915,  §  6907),  if  attacking  party  does  so  merely  for 
defense,  and  seeks  no  affirmative  relief.  Id.  Where  verified  answer  admitted 
defendants'  signature  on  note  in  suit  to  be  genuine,  and  alleged  that  their  sig- 
natures were  obtained  by  fraud  and  asked  no  affirmative  relief,  a  reply  plead- 
ing statute  (Code  Civ.  Proc.  §  17  [Gen.  St.  1915,  §  6907])  limiting  actions  for 
relief  for  fraud  to  two  years  after  its  discovery  is  bad  as  directing  limitation 
to  a  matter  of  pure  defense.  Id. 

27  Stauffer  v.  Campbell,  30  Okl.  76,  118  P.  391;    Rev.  Laws  1910,  §  4662; 
Cooper  v.  Gibson  (Okl.)  170  P.  220;    Advance  Thresher  Co.  v.  Doak,  129  P. 
736,  36  Okl.  532. 

Code  Civ.  Proc.  §  102  (Gen.  St.  1909,  §  5695),  allowing  cross-demands,  not- 
withstanding the  statute  of  limitations,  held  not  applicable  to  a  set-off  for 
damages,  where  a  special  contract  prescribed  conditions  precedent  to  a  claim 
for  damages,  and  that  a  breach  thereqf  should  bar  recovery.  Chicago,  R.  I. 
&  P.  Ry.  Co.  v.  Theis.  152  P.  619,  96  Kan.  494. 

Under  Civ.  Code,  §  102  (Gen.  St.  1909,  §  5695),  held,  that  the  statute  of  limita- 
tions was  not  a  bar  to  a  cross-demand  and  counterclaim  setting  up,  in  a  bank's 
action  on  notes,  false  representations  of  plaintiff's  cashier,  false  charges 
against  defendant,  and  failure  to  credit  defendant  with  deposits.  Drovers' 
State  Bank  v.  Elliott,  154  P.  255,  97  Kan.  64. 

Under  Code  Civ.  Proc.  §  102  (Gen.  St.  1909,  §  5695),  where  a  defendant  wrong- 

28  O'Neil  v.  Eppler,  162  P.  311,  99  Kan.  493. 


§§  337r339  LIMITATIONS  (Ch.  7 

While  a  set-off  barred  by  limitations  may  be  legally  pleaded  as 
a  set-off,  an  original  action  within  one  year  after  such  set-off  is 
pleaded  cannot  be  maintained  on  such  set-off,  although  the  set-off 
is  not  disposed  of  upon  its  merits.29 

§  338.     Computation  of  time 

Except  where  a  different  intention  is  manifest,  in  computing 
time  from  a  certain  date  the  first  day  is  to  be  excluded  and  the  last 
included.30 

A  day,  in  legal  consideration,  is  punctum  temporis ;  fractions  of 
a  day  being  disregarded  in  computations  which  include  more  than 
one  day  and  involve  no  question  of  priority.31 

§  339.     Bar  absolute — operation  in  general 

"When  a  right  of  action  is  barred  by  the  provisions  of  any  stat- 
ute, it  shall  be  unavailable  either  as  a  cause  of  action  or  ground  of 
defense,  except  as  otherwise  provided  with  reference  to  a  counter- 
claim or  set-off."  32 

The  statute  of  limitations  can  be  pleaded  only  as  a  defense,  and 
cannot  be  made  the  basis  of  a  claim  for  affirmative  relief.33 

Where  a  cause  of  action  is  barred  against  an  official,  it  is  barred 
against  the  sureties  upon  his  official  bond.34 

Book  accounts  which  are  barred  by  the  statute  of  limitations  are 
not  legal,  but  moral,  obligations.35 

fully  withholding  land  is  allowed  a  claim  for  mortgages  paid  by  him,  plaintiff, 
notwithstanding  the  statute  of  limitations,  may  set  up  a  claim  for  the  reason- 
able rental  value.  New  v.  Smith,  155  P.  1080,  97  Kan.  580. 

In  action  for  shortage  in  land  conveyed  to  plaintiff  by  defendant,  wherein 
defendant  counterclaimed  for  shortage  in  stock  of  merchandise  traded  to  him 
for  the  land,  Gen.  St.  1915,  §  6994,  prevented  application  of  statute  of  limita- 
tions to  counterclaim.  McKenna  v.  Morgan,  102  Kan.  478,  170  P.  998. 

2»  Delzell  v.  Couch  (Okl.)  173  P.  361. 

so  Baker  v.  Hammett,  100  P.  1114,  23  Okl.  480. 

In  computing  the  two-year  period  within  which  action  to  recover  usurious 
interest  paid  must  be  brought  under  United  States  Usury  Statute  (U.  S.  Oomp. 
St.  §  9759)  the  first  day  of  the  period  is  excluded  and  the  last  day  included. 
First  Nat.  Bank  v.  Drew  (Okl.)  169  P.  1092. 

si  Franklin  v.  State,  9  Okl.  Cr.  178,  131  P.  183. 

32  Rev.  Laws  1910,  §  4664. 

as  Corlett  v.  Mutual  Ben.  Life  Ins.  Co.,  55  P.  844,  60  Kan.  134;  Burditt  v. 
Burditt,  64  P.  77,  62  Kan.  576 ;  Johnson  v.  Wynne,  67  P.  549,  64  Kan.  138. 

34  Allen  v.  State,  51  P.  572,  6  Kan.  App.  915;  Ryus  v.  Gruble,  3  P.  518,  31 
Kan.  767. 

ss  Balmer  v.  Long,  104  Kan.  408,  179  P.  371. 


Art.  1)  PURPOSE,  VALIDITY,  AND   OPERATION  §§    339-340 

On  a  petition  in  an  action  for  procuring  money  by  fraudulent 
representations  respecting  worthless  patent-right  territory  pur- 
chased by  plaintiff,  he  could  recover  for  the  fraud,  though  the  ques- 
tion of  value  was  barred  by  limitations.36 

The  vendee's  title  under  a  contract  of  purchase  will  not  be  quiet- 
ed against  the  vendor  where  the  consideration  has  not  been  paid, 
though  the  vendor  has  failed  to  enforce  payment  within  the  period 
of  limitations.37 

Though  cause  of  action  on  a  judgment  is  barred  by  limitations, 
costs  paid  by  the  judgment  creditor  in  the  action  within  five  years, 
owing  to  the  failure  of  the  judgment  debtor  to  pay  the  same,  are  not 
barred.38 

While  an  action  to  enforce  an  arbitration  award  between  the 
owner  and  the  person  holding  realty  as  security  for'a  debt  is  barred 
after  five  years,  a  suit  to  quiet  title  to  the  realty  on  the  ground  that 
the  debt  has  been  paid  is  not  barred.39 

A  cause  of  action  against  a  corporation,  which  accrues  on  the  sus- 
pension of  business  by  the  corporation,  and  against  which  the  stat- 
ute of  limitation  will  run  within  three  years  thereafter,  will  be- 
come barred  also  as  to  a  stockholder  on  his  individual  liability,  not- 
withstanding the  creditor  cannot  commence  an  action  against  the 
stockholder  until  after  the  expiration  of  one  year  from  the  time 
the  corporation  suspended  business.40 

Where,  in  an  action  for  reconveyance  of  property  originally  con- 
veyed to  indemnify  defendant  on  a  recognizance,  an  allegation  in 
the  petition  that  six  years  had  elapsed  since  judgment  was  obtained 
on  the  recognizance  is  not  pleading  the  statute  of  limitations  as  a 
weapon  of  attack,  but  as  limiting  defendant's  legal  liability  on  the 
judgment.41 

§  340.     Debt  of  husband  and  wife 

Where  a  mortgage  on  a  homestead,  the  title  to  which  is  in  the 
wife,  is  executed  by  the  husband  and  wife  to  secure  their  note, 

se  Berhenke  v.  Penfield,  94  Kan.  532,  146  P.  1187. 
37  Berkley  v.  Idol,  136  P.  923,  91  Kan.  16. 
ss  City  of  Topeka  v.  Ritchie,  102  Kan.  384,  170  P.  1003. 

s  9  Doty  v.  Shepard,  139  P.  1183,  92  Kan.  122,  rehearing  denied  141  P.  1013, 
92  Kan.  1041. 

40  Pacific  Elevator  Co.  v.  Whitbeck,  64  P.  984,  63  Kan.  102,  88  Am.  St.  Rep. 
229. 

41  Morris  v.  Hulme,  81  P.  169,  71  Kan.  628. 

(203) 


§§  340-342  LIMITATIONS  (Ch.  7 

limitations  will  not  bar  foreclosure,  so  long  as  an  action  to  recover 
the  debt  may  be  maintained  against  the  husband,  though  such  an 
action  is  barred  against  the  wife.42 

The  refusal  to  foreclose  a  mortgage  given  to  secure  a  note  of  a 
husband  and  wife,  for  the  reason  that  the  title  to  the  mortgaged 
land  was  in  her  and  that  the  debt  as  to  her  was  barred,  is  error.43 

In  an  action  commenced  against  a  husband  on  a  tax  deed  for  the 
recovery  of  land,  where,  after  the  statute  of  limitations  has  run 
on  the  deed,  the  wife  on  her  own  motion  is  made  a  party  to  the  ac- 
tion in  order  to  resist  the  claim  of  plaintiff  for  a  tax  lien,  she  can 
plead  the  statute  in  her  behalf,  although  the  action  was  brought 
against  her  husband  within  the  statutory  time.44 

§.  341.     Replevin 

Limitations  are  not  a  bar  to  a  recovery  in -replevin  by  a  mortgagee 
of  the  possession  of  the  mortgaged  property  before  the  statute  ran 
on  the  note,  though  the  case  was  not  tried  until  after  the  right  of 
action  had  been  barred  on  the  note.45 

§  342.     Foreclosure 

In  an  action  to  foreclose,  the  same  limitation  applies  to  the  note 
as  to  the  mortgage,  and  if  an  action  is  maintainable  on  the  note, 
it  is  maintainable  on  the  mortgage.46 

Where  a  grantee,  who  has  assumed  a  mortgage  debt,  conveys  the 
land,  an  action  to  enforce  the  mortgage  lien  is  not  barred  until  ac- 
tion against  the  debtor  is  barred.47 

t  A  suit  to  foreclose  a  mortgage  having  been  brought  within  five 
years  from  maturity,  the  statute  of  limitations  cannot  be  pleaded 
against  it  by  the  holder  of  a  tax  title,  who  intervenes  after  the  five 
years  have  run,  and  asks  that  the  title  be  quieted  in  him.48 

*2  Investment  Securities  Co.  v.  Manwarren,  6S  P.  68,  64  Kan.  636. 

43  Cooper  v.  Hay  thorn,  71  P.  277,  66  Kan.  91. 

Where,  on  foreclosure  to  secure  a  joint  and  several  note  executed  by  hus- 
band and  wife,  the  court  find  that  limitations  have  run  against  £he  wife,  but 
as  to  the  husband  the  note  is  in  force,  it  is  error  to  award  judgment  against 
the  husband  alone,  and  refuse  to  foreclose  the  mortgage,  because  the  property 
is  that  of  the  wife.  Cooper  v.  Haythorn  (Kan.)  68  P.  1069. 

44  Richards  v.  Tarr,  22  P.  557,  42  Kan.  547. 

45  McDonald  v.  Hutchinson  Wholesale  Grocer  Co.,  68  P.  1083,  65  Kan.  17. 
40  Kirk  v.  Andrew,  97  P.  797,  78  Kan.  612. 

47  Hendricks  v.  Brooks,  101  P.  622,  80  Kan.  1,  133  Am.  St.  Rep.  186. 
*s  Ordway  v.  Cowles,  25  P.  862,  45  Kan.  447. 

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Art.  2)  COMMENCEMENT   OF  ACTION  §§    342~343 

The  holder  of  a  tax  title  against  mortgaged  property  cannot  in- 
voke limitations  as  a  defense  to  a  suit  to  foreclose.49 

Where  a  guarantor  of  payment  of  a  note  secured  by  mortgage 
after  purchase  of  the  mortgaged  premises  at  a  tax  sale  thereof 
assigned  the  tax  sale  certificate,  its  assignee  was  its  successor  in 
relationship  to  the  land,  in  privity  with  it,  and  could  plead  the  de- 
fense of  statute  of  limitations  the  same  as  it  might  have  done.50 

Plaintiff,  in  an  action  to  quiet  title,  may  interpose  the  bar  of  limi- 
tations against  a  defendant  mortgagee  seeking  to  foreclose  a  mort- 
gage lien  thereon.51 

A  mortgage  securing  a  note  must  stand  or  fall  with  the  note,  and, 
if  the  note  cannot  be  legally  collected,  the  mortgage  cannot  be  en- 
forced." 

ARTICLE  II 

COMMENCEMENT  OF  ACTION 

Sections 

343.  When  action  commenced. 

344.  Amendment. 

§  343.    When  action  commenced 

"An  action  shall  be  deemed  commenced,  within  the  meaning  of 
this  article,  as  to  each  defendant,  at  the  date  of  the  summons  which 
is  served  on  him,  or  on  a  co-defendant,  who  is  a  joint  contractor  or 
otherwise  united  in  interest  with  him.  Where  service  by  publica- 
tion is  proper,  the  action  shall  be  deemed  commenced  at  the  date 
of  the  first  publication.  An  attempt  to  commence  an  action  shall 
be  deemed  equivalent  to  the  commencement  thereof,  within  the 
meaning  of  this  article,  when  the  party  faithfully,  properly  and  dili- 
gently endeavors  to  procure  a  service ;  but  such  attempt  must  be 
followed  by  the  first  publication  or  service  of  the  summons  within 
sixty  days."  BS 

4»  Gibson  v.  Rea,  140  P.  893,  92  Kan.  262 ;  Gibson  v.  Ast,  94  P.  801,  77 
Kan.  458. 

50  Cones  v.  Gibson,  94  P.  998,  77  Kan.  425,  16  L.  R.  A.  (N.  S.)  121. 
si  Hogaboom  v.  Flower,  72  P.  547,  67  Kan.  41. 

52  Vanselous  v.  McClellan,  57  Okl.  742,  157  P.  923. 

53  Rev.  Laws  1910,  §  4659 ;    English  v.  T.  H.  Rogers  Lumber  Co.  (Okl.)  173 
P.  1046. 

Under  St.  1890,  c.  70,  art.  7,  §  1,  providing  that  a  civil  action  shall  be  com- 

(205) 


§§  343-344  LIMITATIONS  (Ch.  7 

Where  the  petition  and  affidavit  for  summons  by  publication  and 
affidavit  for  attachment  are  filed,  and  order  of  attachment  is  issued 
and  served  immediately,  though  first  publication  was  not  made  until 
later,  the  action  was  commenced,  provided  summons  by  publication 
was  later  duly  completed.54 

Where  a  petition  is  filed  and  summons  issued  thereon,  though 
service  is  not  obtained,  but  an  alias  summons  is  issued  and  prop- 
erly served  within  60  days,  the  action  will  be  deemed  to  have  been 
commenced  when  the  petition  was  filed; 55  but  where  an  alias  sum- 
mons was  issued  and  served  more  than  60  days  after  confession  of 
a  motion  to  set  aside  a  summons,  the  action  was  not  begun  until  the 
date  of  the  alias  summons.56 

Where  certain  defendants  seek  to  enforce  demands  against  a 
codefendant,  the  action  will  be  deemed  commenced  as  to  such  de- 
mands at  the  time  the  answers  setting  them  up  are  filed.57 

An  action  prematurely  brought  prevents  the  running  of  the  stat- 
ute of  limitations.58 

§  344.    Amendment 

An  amendment  of  the  petition  ordinarily  relates  back  to  the  date 
.of  the  commencement  of  the  action,59  particularly  if  the  amendment 


menced  by  filing  in  the  office  of  the  proper  clerk  a  complaint  and  causing  a 
summons  to  issue  thereon,  and  the  action  shall  be  deemed  commenced  from  the 
time  of  issuing  summons,  where  the  statute  of  limitations  was  two  years, 
and  the  complaint  was  filed  September  30,  1890,  and  summons  issued  April 
5, 1892,  and  served  the  same  day,  the  action  was  not  barred  by  the  two  years' 
limitation  at  the  time  it  was  commenced.  Schnell  v.  Jay,  46  P.  598,  4  Okl. 
157.  Under  the  express  provision  of  Comp.  St.  Neb.  1889,  Code  Civ.  Proc.  § 
19,  an  action  was  deemed  commenced  at  the  date  of  the  summons  which  was 
served.  Id.  Under  St.  Okl.  1890,  c.  70,  art.  7,  §  1,  adopted  from  Indiana,  a 
civil  action  was  deemed  commenced  from  the  time  of  issuing  summons.  Id. 
Actions  for  forcible  entry  and  detainer  are  not  to  be  deemed  commenced 
until  summons  has  issued,  regardless  of  the  date  when  the  complaint  was  veri- 
fied, under  St.  1893,  p.  891,  c.  67,  art.  2,  §  9,  providing  that  actions  before  jus- 
tices are  commenced  by  summons,  or  by  appearance  and  agreement  of  the 
parties  without  summons.  Greenameyer  v.  Coate,  72  P.  377,  12  Okl.  452. 

54  Richardson  v.  Carr  (Okl.)  171  P.  476. 

55  German  Ins.  Co.  v.  Wright,  49  P.  704,  6  Kan.  App.  611. 

se  Brock  v.  Francis,  131  P.  1179,  89  Kan.  463,  45  L.  R.  A.  (N.  S.)  756. 
67  German  Fire  Ins.  Co.  v.  Bullene,  33  P.  467,  51  Kan.  764. 

58  St.  Louis  &  S.  F.  Ry.  Co.  v.  Kinman,  58  P.  1037,  9  Kan.  App.  633. 

59  An  amendment  of  a  petition  substituting  one  party  for  another  as  plain- 
tiff relates  to  the  institution  of  the  action  and  suspends  limitations  as  to  the 

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Art.  2)  COMMENCEMENT   OP  ACTION  §   344 

is  formal  and  not  substantial,60  though  it  involves  the  bringing  in 
of  new  parties,61  unless  it  sets  up  a  new  cause  of  action,62  in  which 
case,  such  new  cause  of  action  is  barred.63 

substituted  plaintiff  from  the  time  the  action  was  begun  and  not  from  the 
date  of  the  amendment.  Harlan  v.  Loomis,  140  P.  845,  92  Kan.  398. 

Where  a  petition  has  been  filed  within  proper  time,  the  cause  of  action  was 
not  barred,  though  an  amended  petition  not  changing  the  cause  of  action 
was  not  filed  until  after  two  years  from  the  discovery  of  the  fraudulent  acts 
complained  of.  Z.  J.  Fort  Produce  Co.  v.  Southwestern  Grain  &  Produce 
Co.,  108  P.  386,  26  Okl.  13. 

Where  a  cross-complaint  filed  within  the  period  of  limitations  is  not  sign- 
ed by  the  attorneys  until  after  the  filing  of  a  trial  amendment,  such  amend- 
ment will  relate  back  to  the  filing  of  the  cross-complaint,  and  action  is  not 
barred  by  limitations.  Anthony  Inv.  Co.  v.  Arnett,  64  P.  1024,  63  Kan.  879. 

A  cause  of  action  is  not  barred  because  an  amendment  of  the  petition  was 
filed  after  the  statute  had  run  against  the  action,  if  the  original  petition 
was  filed  in  time.  Culp  v.  Steere,  28  P.  987,  47  Kan.  746. 

Where,  in  an  action  on  a  note,  the  court  substituted  the  real  owner  of  the 
note  as  plaintiff  in  place  of  the  payee  thereof,  such  substitution  did  not 
change  the  cause  of  action;  and,  since  the  amendment  related  back  to  the 
commencement  thereof,  the  running  of  the  statute  of  limitations  was  arrest- 
so  Defendant  was  legatee  and  executor  of  testator's  will,  and  the  testator's 
sole  heir  at  law  filed  a  petition  to  set  it  aside  within  two  years  from  the 
probate  thereof,  to  which  a  demurrer  was  sustained  because  defendant  was 
named  as  executor  neither  in  the  caption  nor  the  body  of  the  petition,  al- 
though it  clearly  appeared  from  the  averments  of  the  petition  that  the  suit 
was  against  him  both  in  his  own  right  and  as  executor;  and  over  two  years 
after  the  probate  of  the  will  an  amended  petition  was  filed,  in  which  de- 
fendant was  named  as  executor.  Held,  that  the  action  was  not  barred  by 
the  two-years  statute  of  limitations,  since  the  amendment  was  formal  and 
not  substantial.  Hoffman  v.  Steffey,  61  P.  822,  10  Kan.  App.  574. 

«i  In  an  action  to  contest  a  will,  a  devisee  who  was  friendly  to  contestant 
could  be  made  a  party  to  the  suit  two  years  from  the  time  the  will  was  pro- 
bated without  affecting  the  statute  of  limitations.  Lyons  v.  Berlau,  73  P. 
52,  67  Kan.  426. 

62  in  an  action  against  a  railroad  company  for  appropriating  a  street  in 
front  of  plaintiff's  lots  by  laying  its  track  therein,  stopping  his  ingress  and 
egress,  damages  were  claimed  as  for  a  quasi  condemnation  by  the  wrongful 
use  of  the  street.  After  the  action  had  been  pending  more  than  10  years, 
plaintiff  by  amendment  sought  to  bring  in  another  railway  company  as  de- 
fendant, charging  it  with  conspiring  with  the  first  to  appropriate  the  street. 
Held,  that  recovery  against  the  new  defendant  was  barred  by  limitations. 
Anderson  v.  Atchison,  T.  &  S.  F.  R.  Co.,  80  P.  946,  71  Kan.  453. 

Amended  cross-petition  to  foreclose  mechanic's  lien  on  lot  on  which  build- 
ing was  erected  did  not  set  up  new  cause  barred  by  limitations  where  the 
original  cross-petition  sought  foreclosure  of  lien  against  same  lot  and  adjoin- 
ing lot.  Moline  Elevator  Co.  v.  Loewen  Real  Estate  &  Investment  Co.,  57 
Okl.  478,  157  P.  99. 

83  See  note  63  on  page  210. 

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§    344  LIMITATIONS  (Ch.  7 

Where  an  original  petition  states  no  cause  of  action  whatever, 
it  will  not  arrest  the  running  of  limitations,  and  an  amendment 
made  after  the  bar  of  the  statute  is  complete  must  be  treated  as 

ed  from  the  commencement  of  the  action.  Service  v.  Farmington  Sav.  Bank, 
62  P.  670,  62  Kan.  857. 

An  amendment  to  a  petition  seeking  recovery  on  a  fire  policy,  whereby 
the  facts  showing  the  fraud  and  mistake  in  description  were  set  forth,  and 
praying  reformation  and  recovery,  held  not  to  change  the  cause  of  action, 
and  hence  limitations  did  not  run  from  the  time  of  amendment.  Phenix  Ins. 
Co.  of  Brooklyn,  N.  Y.,  v.  Ceaphus,  51  Okl.  89,  151  P.  568. 

Where  plaintiff  sued  on  a  note  before  it  was  barred  by  limitations,  an 
amendment  of  the  complaint  after  limitations  had  run  merely  for  the  purpose 
of  correcting  a  recital  that  a  copy  of  the  note  was  attached  to  the  complaint 
as  Exhibit  A  so  as  to  allege  that  the  original  instead  of  a  copy  was  attach- 
ed did  not  state  a  new  cause  of  action,  and  was  therefore  not  barred.  Brad- 
ley v.  Pinney,  93  P.  585,  77  Kan.  763. 

Where  an  action  to  quiet  title  as  against  a  tax  deed  was  brought  within 
the  prescribed  five  years,  and  after  the  expiration  of  that  period,  by  stipula- 
tion, the  form  of  action  was  changed  to  ejectment,  and  amended  pleadings 
were  filed,  and  the  proceedings  thereafter  were  in  ejectment,  it  did  not  oper- 
ate as  a  dismissal  of  the  suit  to  quiet  title  and  the  commencement  of  an  eject- 
ment. Hillyer  v.  Douglass,  42  P.  329,  56  Kan.  97. 

Where,  in  a  suit  for  conversion,  it  appears  that  defendant  did  not  in  fact 
sell  the  property,  but  it  was  sold  under  his  direction,  plaintiff  is  permitted 
to  amend  his  petition,  so  as  to  charge  defendant  with  conversion,  and  such 
amendment  is  made  more  than  five  years  after  the  cause  of  action  accrued, 
still,  as  the  amendment  was  in  fact  made  and  as  the  plaintiff's  action  was 
commenced  less  than  two  years  after  the  original  cause  of  action  accrued, 
there  is  no  room  for  claiming  that  the  cause  on  which  the  plaintiff  recovered 
was  barred  at  the  time  by  the  operation  of  any  statute  of  limitations.  Empo- 
ria  Nat.  Bank  v.  Layfeth,  64  P.  973,  63  Kan.  17. 

Wrongful  death. — Amendment  of  petition  to  allow  widow  of  one  killed 
while  under  federal  Employers'  Liability  Act  (U.  S.  Comp.  St.  §§  8657-8665) 
so  as  to  permit  her  to  sue  as  his  personal  representative,  instead  of  personally, 
was  not  commencement  of  new  cause  of  action  for  purpose  of  applying  two- 
year  limitation  provided  by  act.  Missouri,  K.  &  T.  Ry.  Co.  v.  Lenahan  (Okl.) 
171  P.  455. 

Filing  of  an  amendment,  under  Rev.  Laws  1910,  §  4790,  adding  the  names 
of  brothers  and  sisters  as  plaintiffs,  in  an  action  for  death,  held  to  relate 
back  to  the  commencement  of  the  action  by  the  mother  so  as  to  defeat  a 
plea  of  the  statute  of  limitations,  section  4692.  Motsenbacker  v.  Shawnee 
Gas  &  Electric  Co.,  49  Okl.  304,  152  P.  82,  L.  R.  A.  1916B,  910. 

In  action  for  wrongful  death  under  Rev.  Laws  1910,  §§  5281,  5282,  by  fa- 
ther of  deceased  child,  where  more  than  two  years  after  death  he  amended 
by  joining  mother  of  deceased  as  other  next  of  kin,  the  amendment  related 
back  to  commencement  of  suit  and  arrested  statute  of  limitations.  Cowan 
v.  Atchison,  T.  &  S.  F.  Ry.  Co.  (Okl.)  168  P.  1015. 

Petition,  in  a  widow's  action  for  the  negligent  killing  of  her  husband  by 
a  train,  held  sufficient  to  constitute  a  commencement  of  the  action  within 
the  statute  of  limitations,  though  it  failed  to  allege  that  deceased  was  a 

(208) 


Art.  2)  COMMENCEMENT   OF  ACTION  '    §    344 

filed  at  the  time  the  amendment  is  made,  and  a  cause  of  action  stat- 
ed therein  cannot  escape  the  bar  of  the  statute.6* 

nonresident  and  that  by  the  laws  of  the  state  of  his  residency  the  widow 
was  the  only  person  entitled  to  bring  the  action.  Robinson  v.  Chicago,  R. 
I.  &  P.  Ry.  Co.,  133  P.  537,  90  Kan.  426. 

Even  after  the  expiration  of  the  time  within  which  an  action  for  wrongful 
death  may  be  brought,  the  petition  in  such  an  action  may  be  amended  by 
setting  out  the  existence  of  a  statute  of  the  state  where  the  wrongful  act 
occurred,  which  authorizes  recovery.  Cunningham  v.  Patterson,  132  P.  198, 
89  Kan.  684,  48  L.  R.  A.  (N.  S.)  506.  . 

If,  after  a  widow  has  brought  an  action  for  the  death  of  her  husband, 
she  is  appointed  administratrix  and  amends  the  petition,  her  action  as  ad- 
ministratrix is  not  barred  by  the  two-year  statute  of  limitations.  Mott  v. 
Long,  132  P.  998,  90  Kan.  110. 

Even  after  the  expiration  of  the  time  within  which  an  action  for  wrongful 
death  may  be  brought,  the  petition  therein  may  be  amended  by  setting  out 
the  existence  of  a  statute  of  the  state  where  the  wrongful  death  occurred 
which  authorizes  recovery  by  plaintiff.  Robinson  v.  Chicago,  R.  I.  &  P.  Ry. 
Co.,  133  P.  537,  90  Kan.  426. 

Ejectment. — A  petition  in  ejectment  may  be  amended  so  as  to  change  the 
description  of  the  property  sought  to  be  recovered  where  there  was  no  con- 
tention that  limitations  had  expired  between  the  beginning  of  the  action  and 
the  amendment.  Hinnen  v.  Artz,  163  P.  141,  99  Kan.  579. 

Damages. — An  amendment  of  a  petition  in  an  action  for  damages,  by  add- 
ing the  name  of  a  party  plaintiff,  made  more  than  two  years  after  the  cause 
of  action  accrued,  relates  back  to  the  date  of  the  commencement  of  the  action, 
and  the  cause  of  action  is  not  for  that  reason  barred  by  limitations.  Huckle- 
bridge  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  71  P.  814,  66  Kan.  443. 

An  amended  petition,  which  merely  enlarged  the  claim  for  damages,  held 
not  demurrable  because  it  showed  that  the  claim  was  barred,  since  the  amend- 
ed petition  would  relate  back  to  the  original  filing  and  defeat  the  opera- 
tion of  the  statute.  Armstrong  v.  May,  55  Okl.  539,  155  P.  238. 

Under  Rev.  Laws  1910,  §  4970,  amendment  Df  complaint  for  personal  in- 
juries after  reversal,  and  after  five  years  from  accrual  of  cause  of  action, 
to  allege  negligent  failure  to  provide  safe  fellow  servants,  was  permissible. 
E.  Van  Winkle  Gin  &  Machine  Works  v.  Brooks,  53  Okl.  411,  156  P.  1152. 

A  petition  alleging  negligence  in  general  terms  may  be  amended,  so  as  to 
set  forth  definitely  the  alleged  negligence,  although  the  period  of  limita- 
tions has  expired  when  the  amendment  is  made.  Missouri  Pac.  Ry.  Co.  v. 
Moffatt,  55  P.  837,  60  Kan.  113,  72  Am.  St.  Rep.  343. 

The  petition,  in  a  servant's  personal  injury  action  against  a  railway  com- 
pany, charged  that  defendant's  servants  negligently  pushed  certain  cars  neg- 
ligently fastened  together  with  a  chain,  so  as  to  make  them  dangerous  to 
handle  and  use,  all  of  which  was  known  to  defendant,  and  while  so  push- 
ing and  switching  said  cars  negligently  so  operated  the  cars  as  to  throw 
plaintiff  off  of  one  of  said  cars,  etc.  An  amended  petition  charged  that  de- 
fendant negligently  fastened  two  cars  together  with  a  chain,  making  the 

e*  Missouri,  K.  &  T.  Ry.  Co.  v.  Bagley,  69  P.  189,  65  Kan.  188,  3  L.  R.  A. 
(N.  S.)  259 ;  Powers  v.  Badger  Lumber  Co.,  90  P.  254,  75  Kan.  687. 

HON.PL.&  PBAC.— 14  (209) 


§  344  LIMITATIONS  (Ch.  7 

Though  the  statute  provides  that  an  action  to  foreclose  a  lien 
shall  be  brought  within  one  year  from  the  time  of  its  filing,  an 

cars  dangerous;  that  defendant  had  knowledge  of  such  defective  coupling; 
that  plaintiff  had  no  knowledge  of  the  dangerous  condition  of  the  cars,  and 
was  injured  by  a  movement  of  the  cars  directed  by  defendant  without  proper 
regard  for  safety.  Held,  that  the  first  petition  charged  negligence  in  the 
coupling  of  the  cars,  which  was  made  the  basis  of  the  charge  of  negligence 
in  the  amended  petition,  so  that  the  latter  did  not  set  up  a  new  cause  of 
action ;  and  hence  the  cause  of  action  set  up  in~  the  amended  petition  was 
not  barred  by  limitation.  Taylor  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  68  P.  691, 
64  Kan.  888. 

Where  breaches  of  building  contract  constituted  only  a  single  cause  of 
action,  an  amendment  to  petition  more  than  five  years  after  completion  of 
work  setting  up  additional  items  furnished  under  contract  was  not  barred 
by  statute  of  limitations.  Lantry  Contracting  Co.  v.  Atchison,  T.  &  S.  F. 
Ry.  Co.,  172  P.  527,  102  Kan.  799. 

A  petition  alleging  that  defendant  unlawfully  carried  away  stone  from 
land  owned  by  plaintiff,  and  asking  treble  damages  therefor,  sufficiently 
states  a  cause  of  action  under  Gen.  St.  1909,  §  9692,  authorizing  treble  dam- 
ages against  one  who  carries  away  stone  from  land  in  which  he  has  no  in- 
terest, so  that  after  the  lapse  of  limitations  it  may  be  amended  to  accord 
to  the  language  of  that  act.  Fox  v.  Turner,  116  P.  233,  85  Kan.  146 ;  Green 
v.  Same,  116  P.  234,  85  Kan.  877. 

6  3  Where  an  amendment  sets  forth  a  new  cause  of  action,  limitation  may 
be  pleaded  to  the  new  matter.  Thompson  v.  Beeler,  77  P.  100,  69  Kan.  462 ; 
Butt  v.  Carson,  48  P.  182,  5  Okl.  160. 

Amendment  to  count  of  petition  in  action  for  malicious  prosecution  to 
allege  defendants'  false  testimony  resulting  in  a  conviction  brought  in  a 
new  cause  of  action,  and,  when  filed  more  than  one  year  after  cause  of  ac- 
tion accrued,  it  was  barred  by  Code  Civ.  Proc.  §  17,  subd.  4  (Gen.  St.  1915, 
§  6907,  subd.  4).  Smith  v.  Parman,  172  P.  33,  102  Kan.  787. 

Where  plaintiff,  by  amendment,  sets  up  no  new  matter  or  claim,  but  mere- 
ly restates  more  specifically  the  cause  of  action  set  out  in  original  declara- 
tion, there  is  no  new  suit,  and  statute  of  limitation  will  not  avail  for  period 
between  original  and  amended  pleading.  Continental  Ins.  Co.  v.  Norman 
(Okl.)  176  P.  211.  Where  original  declaration  states  a  cause  of  action  im- 
perfectly and  thereafter  the  defect  is  corrected  by  an  amended  declaration, 
the  plea  of  statute  of  limitations  will  relate  to  time  of  filing  of  original  decla- 
ration. Id. 

An  action  on  a  note  containing  an  indorsement  of  a  payment,  commenced 
within  five  years  after  date  of  the  indorsement,  held  barred  by  limitations, 
where  the  petition  did  not  allege  payment  to  remove  the  apparent  bar  under 
Code  Civ.  Proc.  §  23  (Gen.  St.  1909,  §  5616),  and  the  amended  petition  which 
made  such  allegation  was  not  filed  until  more  than  five  years  after  the  date 
of  the  indorsement.  Liphart  v.  Myers,  156  P.  693,  97  Kan.  686. 

In  an  action  against  a  township  for  injuries  from  a  defective  highway, 
a  petition  failing  to  allege  the  notice  essential  to  recovery  cannot  be  cured 
by  amendment  after  expiration  of  the  limitation  period.  Higman  v.  Quin- 
daro  Tp.,  139  P.  403,  91  Kan.  673. 

Where  an  action  is  brought  on  two  notes,  and  during  the  trial  it  is  dis- 

(210) 


Art.  2)  COMMENCEMENT   OF  ACTION  §    344 

action  is  brought  in  time  if  brought  within  the  year,  though  the 
original  contractor,  which  by  law  must  be  made  a  party,  is  not  made 
a  party  until  after  such  year.65 

missed  as  to  one  of  them  without  prejudice,  and  afterwards  plaintiff  amends 
his  petition,  and  claims  the  same  amount  as  balance  due  on  a  settlement, 
and  the  pleadings  show  the  settlement  occurred  more  than  three  years  be- 
fore the  petition  was  amended,  the  amendment  does  not  relate  back  to  the 
time  of  beginning  suit,  and  the  claim  is  barred  by  the  three-years  statute 
of  limitations.  Parsons  Water  Co.  v.  Hill,  26  P.  412,  46  Kan.  145. 

Where  a  servant  commenced  his  action  against  a  railroad  company  for 
injuries  by  the  failure  of  defendant  in  its  common-law  duties  towards  him, 
and  more  than  two  years  after  the  injury  filed  an  amended  petition  contain- 
ing an  additio'nal  cause  of  action,  that  the  injury  was  the  result  of  the  neg- 
ligence of  a  fellow  servant,  for  which  defendant  would  be  liable  only  under 
Laws  1874,  c.  93,  the  statute  of  limitations,  as  applied  to  such  new  cause, 
treats  the  action  as  commenced  when  the  amendment  was  filed.  Atchison, 
T.  &  S.  F.  R.  Co.  v.  Schroeder,  44  P.  1093,  56  Kan.  731. 

Plaintiff,  whose  daughter  was  killed  through  the  alleged  negligence  of 
defendants  brought  an  action  in  which  he  stated  a  common-law  liability 
for  loss  of  services  of  his  daughter,  but  the  averments  were  wholly  insufficient 
to  constitute  a  statutory  liability  for  her  death.  More  than  two  years  after 
the  negligent  injury,  he  asked  and  obtained  leave  to  amend  his  petition, 
so  as  to  state  a  cause  of  action  for  the  recovery  of  damages  for  death  under 
Civ.  Code,  §  422.  Held,  that  the'  amendment  constituted  a  new  cause  of 
action  which  did  not  relate  back  to  the  commencement  of  the  action,  so  that 
the  cause  of  action  set  up  in  the  amendment  was  barred  by  limitations. 
City  of  Kansas  City  v.  Hart,  57  P.  938,  60  Kan.  684;  Simpson  v.  Same.  Id. 

Amendments  which  only  make  more  specific  the  averments  of  the  original 
petition,  or  state  the  wrong  suffered  or  the  right  relied  on,  are  ordinarily 
permissible,  and  relate  back  to  the  beginning  of  the  action,  and,  where  an 
amendment  sets  forth  a  new  and  different  cause  of  action,  limitations  con- 
tinue to  run  until  the  amendment  is  filed.  Union  Pac.  R.  Co.  v.  Sweet,  96 
P.  657,  78  Kan.  243.  In  an  action  to  recover  damages  for  the  negligent  setting 
out  of  a  fire  which  destroyed  plaintiff's  trees,  the  original  petition  alleged 
that  the  fire  was  set  out  at  a  certain  time  and  place,  and,  after  limitations 
had  expired,  plaintiff  obtained  leave  to  amend  his  petition  to  aver  that  the 
damage  resulted  from  a  different  fire  started  five  miles  distant  from  the  one 
originally  relied  on.  Held,  that  the  amendment  set  out  a  distinct  tort,  and 
a  new  cause  of  action,  on  which  a  recovery  was  barred  by  limitations.  Id. 

Where,  in  an  action  for  injuries  to  a  licensee,  there  was  no  allegation  that 
defendant  was  negligent  in  failing  to  light  its  depot  platform,  the  petition 
could  not  be  amended  so  as  to  charge  such  failure  as  a  ground  of  negligence 
after  limitations  had  run  against  it.  Elrod  v.  St.  Louis  &  S.  F.  R.  Co.,  113 
P.  1046,  84  Kan.  444. 

Where  an  action  is  brought  in  Kansas,  based  upon  a  particular  section  of 
the  Missouri  statute,  and  afterwards  an  amended  petition  is  filed,  alleging 
a  right  of  action  under  another  section  of  the  same  statute,  and  the  time  in 
which  the  plaintiff  had  a  right  to  bring  said  action  expired  before  the  amend- 
ed petition  was  filed,  the  bar  of  the  statute  of  limitations  is  not  tolled  by 
the  filing  of  the  first  petition.  Walker  v.  Hester,  59  P.  662,  9  Kan.  App.  201. 

e  &  Western  Sash  &  Door  Co.  v.  Heiman,  68  P.  1080,  65  Kan.  5. 

(211) 


§§  344-345  LIMITATIONS  (Ch.  7 

In  an  action  to  enforce  a  mechanic's  lien,  service  of  summons  on 
the  owner  within  the  period  of  limitation  prescribed  by  statute  for 
the  commencement  of  such  an  action  does  not  preserve  the  lien  as 
against  other  incumbrancers  who  are  not  made  parties  to  such  an 
action  within  the  period  of  limitation.06 

The  filing  of  a  petition  against  one  reciting  facts  which  would 
authorize  an  action  against  one  not  made  a  defendant  will  not  toll 
limitations  as  to  latter  if  he  is  not  made  defendant  until  the  statute 

has  run.67 

• 
• 

ARTICLE  III 

WHEN    STATUTE   BEGINS    TO   RUN 

Sections 

345.  Accrual  of  right  or  defense — In  general. 

346.  Real  property. 

347.  Personal  property. 

348.  Contracts  in  general. 

349.  Continuing  contracts. 

350.  Severable  contracts  and  installments. 

351.  Bonds. 

352.  Covenants — Mortgage  deed. 

353.  Municipal  warrants. 

354.  Torts. 

355.  Guaranty. 

356.  Malfeasance  in  office. 

357.  Statutory  liability. 

358.  Equitable  actions. 

359.  Conditions  precedent. 

360.  Trusts. 

§  345.     Accrual  of  right  or  defense — In  general 

The  statute  of  limitations  does  not  begin  to  run  until  an  obli- 
gation is  due,68  but  whenever  one  party  to  a  contract  may  right- 
fully sue  another  thereon,  a  cause  of  action  has  accrued,  and  the 
statute  begins  to  run.69 

Where,  before  the  time  fixed  for  performance,  one  of  the  parties 


66  Wood  v.  Dill,  43  P.  822,  3  Kan.  App.  484. 

6?  Garrity  v.  State  Board  of  Administration  of  Educational  Institutions, 
162  P.  1167,  99  Kan.  695. 

ss  Henshaw  v.  Smith,  171  P.  616,  102  Kan.  599. 

ea  Patterson  v.  Bonner  (Okl.)  175  P.  826;  United  States  Fidelity  &  Guaranty 
Co.  v.  Fidelity  Trust  Co.,  49  Okl.  398,  153  P.  195. 

(212) 


Art.  3)  WHEN   STATUTE    BEGINS   TO   RUN  §    346 

to  a  contract  for  the  exchange  of  lands  repudiates  it,  the  other 
may  immediately  commence  an  action  for  specific  performance.70 

§  346.    Real  property 

The  right  of  action  to  recover  real  property  does  not  accrue  until 
there  is  a  right  vested  in  plaintiff  and  an  adverse  claim  asserted  or 
perfected.71 

TO  Parks  v.  Monroe,  161  P.  638,  99  Kan.  368. 

7i  Limitations  begin  to  run  against  a  widow  claiming  under  Gen.  St.  1901, 
§  2510,  providing  that  one-half  in  value  of  all  the  realty  in  which  a  husband 
at  any  time  during  marriage  had  a  legal  or  equitable  interest  which  has 
not  been  sold  on  judicial  sale,  and  is  not  necessary  for  payment  of  debts, 
and  of  which  the  wife  has  made  no  conveyance,  shall,  under  the  direction 
of  the  probate  court,  be  set  apart  by  the  executor  as  her  property,  upon 
the  death  of  her  husband,  if  she  survives  him,  when  the  husband  makes  a 
conveyance  of  such  property  without  the  wife  joining  therein  and  the  grantee 
takes  adverse  possession  thereof.  Poole  v.  French,  111  P.  488,  83  Kan.  281. 

In  an  action  of  ejectment,  both  parties  claimed  title  under  tax  deeds.  The 
action  was  commenced  more  than  nine  years  after  the  last  tax  deed  (defend- 
ant's) was  recorded.  Held,  that  the  action  was  barred  by  the  statute  of  limita- 
tions. Campbell  v.  Stagg,  15  P.  531,  37  Kan.  419. 

In  an  action  against  the  original  owner  for  the  possession  of  lands  by  the 
purchaser  at  a  judicial  sale,  where  it  is  shown  that  the  lands  remained  un- 
occupied for  more  than  five  years  after  the  recording  of  the  sheriff's  deed 
given  to  said  purchaser  at  such  sale,  such  original  owner  is  barred  from  set- 
ting up  his  title  as  a  defense  to  said  action.  English  v.  Woodman,  20  P. 
262,  40  Kan.  412. 

When  two  grantees  of  a  tax  title  holder  are  in  the  actual  possession,  each 
of  the  one  undivided  half  of  the  land  sold  for  taxes  before  the  tax  deed  has 
been  of  record  for  five  years,  the  statute  of  limitations  does  not  operate  in 
favor  of  either  in  an  action  between  them  for  partition.  Hamilton  v.  Redden, 
24  P.  76,  44  Kan.  193. 

Where  a  mortgagee  takes  possession  of  real  estate  under  an  agreement 
with  the  mortgagor  to  collect  the  rents  and  apply  them  on  the  debt,  limita- 
tions will  not  begin  to  run  against  the  mortgagor's  right  to  redeem  until  the 
mortgagee,  with  notice  to  the  mortgagor,  asserts  title  in  himself.  Hunter  v. 
Coffman,  86  P.  451,  74  Kan.  308. 

Where  minor  remainderman  executed  deed  to  life  tenant  in  1898  and  dis- 
affirmed it  in  1901  after  death  of  life  tenant,  her  action  in  1914  to  recover 
property  from  life  tenant's  husband  who  claimed  adverse  possession  from 
1898  was  not  barred  by  Code  Civ.  Proc.  §§  15,  16,  since  her  cause  of  action 
did  not  accrue  until  death  of  life  tenant.  Ralph  v.  Ball,  164  P.  1081,  100 
Kan.  460. 

The  statute  of  limitations  held  not  to  run  against  an  action  to  have  a 
deed  declared  a  mortgage  while  the  grantor  was  making  repeated  demands 
for  a  reconveyance,  and  the  grantee  was  promising  to  comply  therewith. 
Clark  v.  Shoesmith,  139  P.  426,  91  Kan.  797. 

Where  town  lots  were  sold  on  March  16,  1897,  at  a  foreclosure  sale,  which 
was  confirmed  June  7,  1897,  and  a  sheriff's  deed  issued  which  was  record- 

(213) 


§§  346-348  LIMITATIONS  (Ch.  7 

Where  a  mortgagee  enters  mortgaged  premises  under  claim  of 
title,  and  notice  of  possession  and  adverse  claim  is  brought  home 
to  the  mortgagor  or  his  successor,  the  statute  of  limitations  is  set  in 
motion  as  to  an  action  to  redeem.72 

The  right  of  action  in  a  forcible  entry  and  detainer  case  between 
adverse  claimants  of  a  homestead  accrues  when  the  contest  is  finally 
adjudicated  in  the  land  office.78 

§  347.     Personal  property 

As  to  lost  personal  property,  or  as  to  such  property  in  the  hands 
of  a  thief,  the  statute  of  limitations  begins  to  run  from  the  wrong- 
ful taking  of  possession,  if  there  is  no  fraud  or  attempt  to  conceal 
or  remove  from  the  court's  jurisdiction.74 

§•348.     Contracts  in  general 

Limitations  did  not  begin  to  run  against  an  attorney's  right  to  a 
fee,  contingent  on  his  collection  of  a  debt  owed  to  the  client,  until 
the  collection  had  been  made.75 

ed  August  11,  1897,  held,  that  a  suit  brought  August  1,  1911,  was  barred  by 
the  five-year  limitations  prescribed  by  Rev.  Laws  1910,  §  4655.  Group  v. 
Jones,  44  Okl.  377,  144  P.  377. 

-2  Turk  v.  Page  (Okl.)  174  P.  1081. 

73  Cope  v.  Braden,  67  P.  475,  11  Okl.  291. 

-•t  Adams  v.  Coon.  129  P.  851,  3G  Okl.  G44,  44  L.  R.  A.  (X.  S.)  624;  Torrey 
v.  Campbell  (Okl.)  175  P.  524.  When  personal  property  which  has  been  lost 
or  stolen  is  in  notorious  possession  by  one  in  whose  possession  it  is  found 
for  two  years  from  date  of  wrongful  taking  or  possession,  owner's  right  of 
action  therefor  is  barred  by  limitations.  Id. 

Limitations  as  to  personalty  in  thief's  hands  do  not  begin  to  run  until 
the  owner  has  an  opportunity  to  assert  his  title.  Chilton  v.  Carpenter,  78 
Okl.  210,  189  P.  747. 

Limitations  (Mansf.  Dig.  §  4478  [Ind.  T.  Ann.  St.  1S99,  §  2945])  as  to  per- 
sonal property  stolen  run  in  favor  of  an  innocent  purchaser  against  the  true 
owner  from  the  time  the  property  is  taken  possession  of,  and  are  a  bar  when 
the  same  has  been  held  openly  for  three  years.  McGehee  v.  Alexander,  127 
P.  480,  33  Okl.  699. 

Comp.  Laws  1909,  §  3550  (Sess.  Laws  1895,  c.  39;    Wilson's  Rev.  &  Ann. 
St.   1903,  §  4216),  provides   that  actions  for  specific  recovery   of  personalty 
must  be  brought  within  two  years.     Held,  that  the  statute  as  to  personal 
property,  though  stolen,  when  held  in  good  faith  and  for  value,  openly  and 
notoriously  runs  in  favor  of  such  adverse  possession,  so  as  to  bar  a  recovery  • 
by  the  true  owner  after  expiration  of  two  years,  and  after  the  statute  be- 
gins to  run.  such  subsequent  purchaser  may  tack  on  such  prior  adverse  hold- 
ing to  complete  the  bar.    Shelby  v.  Shaner,  115  P.  785,  28  Okl.  605,  34  L.  It. 
A.  (N.  S.)  621. 
.  .76  Joyce  v.  Miami  County  Nat.  Bank,  136  P.  232,  90  Kan.  745. 

(214) 


Art.  3)  WHEN   STATUTE    BEGINS   TO    RUN  §    348 

When  time  fixed  for  payment  of  oral  obligation  is  uncertain, 
but  its  maturity  may  arrive  within  one  year  and  promisee  has  fully 
performed  his  part  of  obligation,  the  statute  of  limitations  does  not 
begin  to  run  until  obligation  matures.76 

A  real  estate  agent's  commissions,  consisting  of  the  profits  aris- 
ing from  an  exchange  of  his  principal's  land,  were  earned,  and 
the  right  to  commissions  accrued,  when  the  principal  accepted  a 
purchaser  on  terms  satisfactory  to  him,  and  limitations  began  to 
run  against  the  agent  from  such  time.77 

An  action  for  money  had  and  received  is  not  barred,  where  it 
appears  that  the  money  was  not  received  more  than  three  years 
before,  though  the  wrong  enabling  defendant  to  receive  the  money 
was  committed  more  than  three  years  before.78 

A  surety's  right  of  action  for  contribution  against  a  cosurety 
.accrues  when  he  pays  the  debt  of  his  principal,  so  that  limitations 
do  not  begin  to  run  against  his  cause  of  action  until  such  pay- 
ment.79 

As  against  a  claim  for  services  under  an  implied  contract  to  pay 
their  reasonable  value,  limitations  begin  to  run  at  the  end  of  the 
services,  in  the  absence  of  agreement  as  to  the  time  of  payment  or 
the  length,  of  time  the  services  shall  continue.80 

Where  no  time  was  fixed  for  the  term  of  or  payment  for  personal 
services  continuing  until  the  death  of  the  employer,  the  ordinary 
rule  is  that  limitations  would  not  begin  to  run  against  a  claim  until 
the  services  ended,  in  the  absence  of  a  general  usage  to  the  con- 
trary.81 

Where  a  note  and  mortgage  are  executed  and  delivered  to  the 
mortgagee,  the  law  implies,  in  the  absence  of  an  agreement  to  the 
contrary,  that  the  money  loaned  thereon  is  at  once  due  and  payable 
to  the  mortgagor  by  the  mortgagee,  and  an  action  therefor  must 
.be  brought  within  three  years  from  such  delivery.82 

TO  Henshaw  v.  Smith,  171  P.  616,  102  Kan.  599. 

77  Chamberlain  v.  Wagner,  144  P.  815,  93  Kan.  450. 

78  Perry  v.  Smith.  2  P.  784,  31  Kan.  423. 

7»  Mentzer  v.  Burlingame,  97  P.  371,  78  Kan.  219,  18  L.  R.  A.  (N.  S.)  585. 

so  Blake  v.  Pratt,  54  P.  806,  8  Kan.  App.  486. 

si  In  re  Jewell's  Estate,  103  Kan.  381,  173  P.  923.  In  action  for  taking 
care  of  property  for  plaintiff's  brother  since  deceased,  a  custom  of  real  estate 
men  as  to  monthly  settlements  was  not  controlling  as  to  limitations,  in  view 
•of  character  of  services  and  relations  of  employer  and  employ^.  Id. 

sz  McBride  v.  Lombard  Mortg.  Co.,  24  P.  428,  44  Kan.  351. 

(215) 


§§  348-349  LIMITATIONS  (Ch.  7 

When  the  grantee  of  mortgaged  premises  assumes  and  agrees 
to  pay  the  mortgage  debt,  as  a  part  of  the  price,  without  specify- 
ing time  for  payment,  no  cause  of  action  accrues  against  him  until 
the  debt  becomes  due  according  to  the  contract  of  the  original 
parties.83 

Where  a  note,  payable  in  two  years  after  date,  with  interest  pay- 
able semiannually,  was  secured  by  a  mortgage,  providing  that  on 
default  in  the  payment  of  interest  or  taxes  the  whole  sum  should 
become  due  and  payable,  a  cause  of  action  upon  default  in  the  pay- 
ment of  interest  or  taxes  did  not  accrue,  ~o  as  to  start  the  running 
of  the  statute.84 

No  cause  of  action  arises  on  a  contract  of  an  heir  to  assign  his 
expectancy,  until  the  death  of  his  ancestor.85 

Where  a  landowner  who  had  agreed  to  leave  one-half  of  his  farm 
to  his  son  in  consideration  of  services  of  the  son  sold  the  land,  the  son's 
right  of  action  then  accrued,  and  limitations  began  to  run.86 

Where  two  persons  jointly  performed  services  for  several  years 
and  were  to  be  paid  by  the  recipient  "after  she  was  through  with 
her  property,"  demand  against  her  estate,  if  timely  made,  is  not 
affected  by  the  statute  of  limitations.87 

Limitations  did  not  begin  to  run  against  an  action  on  an  agree- 
ment to  live  jn  the  family  of  another  and  perform  services  until 
the  death  of  himself  and  his  wife  in  consideration  of  his  property  at 
his  death,  upon  a  dismissal  of  the  party  who  had  agreed  to  perform 
the  services  prior  to  the  other  party's  death,  where  she  did  not  ac- 
cept such  renunciation  as  a  breach  and  treat  the  contract  as  then 
at  an  end.88 

§  349.    Continuing  contracts 

Where  there  is  single  hiring  and  term  of  service  and  time  of 
compensation  is  not  fixed,  and  service  continues  until  death  of  em- 
ployer, limitations  do  not  begin  to  run  against  claim  for  compen- 
sation until  the  services  are  ended.89 

ss  Carnahan  v.  Lloyd,  46  P.  323,  4  Kan.  App.  605. 

84  Core  v.  Smith,  102  P.  114,  23  Okl.  909. 

85Clendening  v.  Wyatt,  38  P.  792,  54  Kan.  523,  33  L.  R.  A.  278. 

so  Engelbrecht  v.  Herrington,  172  P.  715,  101  Kan.  720,  103  Kan.  21,  L.  R.  A. 
191SE,  785. 

87  Dubbs  v.  Haworth,  171  P.  624,  102  Kan.  603. 

ss  Heery  v.  Reed,  102  P.  846,  80  Kan.  380. 

8»  Schaffner  v.  Schaffner's  Estate,  157  P.  402,  98  Kan.  167;  Grisham  v» 
Lee,  60  P.  312,  61  Kan.  533;  Same  v.  Greer,  60  P.  312,  61  Kan.  533. 

(216) 


Art.  3)  WHEN   STATUTE   BEGINS   TO   RUN  §§   349~350 

In  an  action  for  rent  of  property,  based  wholly  upon  a  quasi 
contract  arising  by  operation  of  law  from  the  occupation  of  the 
premises,  without  any  express  or  implied  contract,  no  recovery  can 
be  had  based  on  such  occupancy  for  more  than  three  years  prior  to 
the  commencement  of  the  action.90 

§  350.    Severable  contracts  and  installments 

Where  a  note  provides  that  default  in  interest  shall  mature  the 
debt  at  the  option  of  the  holder,  and  there  is  a  default,  and  the 
holder  does  not  exercise  the  option,  limitations  will  not  run  until 
the  time  fixed  for  payment  of  the  note.91 

Where  a  note  payable  five  years  after  date  provides  that  interest 
is  payable  semiannually,  and,  if  not  paid  punctually,  shall  become 
a  part  of  the  principal,  the  installments  of  interest  due  more  than 
five  years  before  bringing  the  suit  are  not  barred  by  the  statute  of 
limitations.92 

A  mortgage  by  its  terms  provided  that,  if  any  coupon  should  not 
be  paid  when  due,  the  debt  secured  by  mortgage,  at  the  option  of 
the  legal  holder,  might  become  due  and  payable  without  notice.  On 
default  in  such  coupons  the  mortgagee  brought  suit  for  foreclosure, 
declaring  the  whole  debt  due.  Thereafter  plaintiff  died,  and  the 
action  was  dismissed.  It  was  held  that  the  election  to  declare  the 
debt  due  was  for  all  purposes,  and  limitations  began  to  run  against 
the  debt  from  the  time  of  the  election,  and  not  from  the  time  the 
note  was  due  according  to  its  terms.03 

Where  a  note  became  due  on  default  in  the  payment  of  interest 
for  two  successive  semiannual  periods,  on  payment  of  interest  up 
to  December,  1892,  limitation  would  not  begin  to  run  until  Decem- 
ber, 1893,  and  hence  an  action  commenced  in  November,  1898,  was 
not  barred.94 

Where  a  mortgage  securing  a  note  due  in  five  years  gives  the 
holder  an  option  to  declare  the  note  due  in  advance  of  maturity, 
upon  default  by  the  maker,  limitations  do  not  begin  to  run  until 
the  holder  exercises  such  option.95 

so  Story  v.  McCormick,  78  P.  819,  70  Kan.  323. 

»i  Kennedy  v.  Gibson,  75  P.  1044,  68  Kan.  612. 

»2  Beeler  v.  Highland  University  Co.,  54  P.  295,  8  Kan.  App.  89. 

as  Westcott  v.  Whiteside,  64  P.  1032,  63  Kan.  49. 

»*  Reed  v.  Gulp,  66  P.  616,  63  Kan.  595. 

»5  York-Ritchie  Exch.  &  Inv.  Co.  v.  Mitchell,  51  P.  57,  6  Kan.  App.  317. 

(217) 


§§  351-353  LIMITATIONS  (Ch.  7" 

§351.    Bonds 

An  action  to  recover  damages  on  an  attachment  bond  should  be 
commenced  within  five  years  from  the  final  determination  of  the 
district  court  that  the  order  was  wrongfully  obtained.96 

Where  a  petition  on  a  stay  bond  alleges  no  element  of  damage 
other  than  the  suspension  of  the  right  to  sue  until  the  determination 
of  the  proceeding  in  error,  the  cause  of  action  accrued  on  such  de- 
termination.97 

§  352.    Covenants — Mortgage  deed 

The  covenants  of  seisin  and  of  the  right  to  convey,  and  that  the 
land  is  free  from  incumbrances,  are  broken  as  soon  as  the  deed  is 
executed,  if  the  title  be  bad;  and  a  cause  of  action  accrues  at 
once.98 

One  cannot  come  into  court  of  equity  and  have  a  deed  declared  a 
mortgage,  and  then  plead  the  statute  of  limitations  against  the 
mortgage,  for  in  such  case  the  statute  begins  to  run  only  from 
date  of  decree  converting  deed  into  mortgage.99 

§  353.    Municipal  warrants 

Limitations  do  not  run  in  favor  of  municipal  or  quasi  municipal 
corporations  upon  its  outstanding  obligations,  evidenced  by  war- 
rants, until  the  corporation  has  provided  a  fund  out  of  which  pay- 
ment of  the  sum  may  be  made.1 

This  rule  does  not  apply  to  its  ordinary  bonded  indebtedness 
represented  by  negotiable  bonds  and  interest  coupons.2 


90  Baker  v.  Skinner,  64  P.  981,  63  Kan.  83. 

97  Cook  v.  Smith,  72  P.  524,  67  Kan.  53. 

98  Jewett  v.  Fisher,  58  P.  1023,  9  Kan.  App.  630. 

99  Huff  v.  Lynde-Bowman-Darby  Co.  (Okl.)  175  P.  250. 

1  Barnes  v.  Turner,  78  P.  108,  14  Okl.  284,  10  L.  R.  A.  (N.  S.)  478,  2  Ann. 
Cas.  391,  judgment  affirmed  Duke  v.  Same,  27  S.  Ct.  316,  204  U.  S.  623,  51  L. 
Ed.  652,  9  Ann.  Cas.  842;    Hubbell  v.  City  of  South  Hutchinson,  68  P.  52, 
64  Kan.  645 ;   City  of  Sulphur  v.  State,  62  Okl.  312,  162  P.  744. 

Where  a  warrant  is  issued  by  the  officers  of  a  quasi  corporation,  and  the 
creditor  accepts  the  same,  relying  on  the  ordinary  modes  of  taxation  to  pay 
the  obligation,  the  municipality  cannot  set  up  the  statute  of  limitations  with- 
out first  showing  that  it  has  provided  a  fund  for  the  payment  of  such  in- 
debtedness. Board  of  Com'rs  of  Greer  County  v.  Clarke  &  Courts,  70  P.  206, 
12  Okl.  197. 

2  Schoenhoeft  v.  Board  of  Com'rs  of  Kearny  County,  92  P.  1097,  76  Kan. 
883,  16  L.  R.  A.  (N.  S.)  803,  14  Ann.  Cas.  100. 

(218) 


Art.  3)  WHEN   STATUTE   BEGINS   TO   RUN  §    354 

§  354.     Torts 

A  cause  of  action  for  tort  accrues  when  the  injury  is  actually 
done.3 

3  The  cause  of  action  for  permanent  injury  to  a  riparian  owner  from  a 
municipal  sewer  system  constituting  a  nuisance  arises,  and  the  statute  of 
limitations  begins  to  run,  when  the  municipality  begins  to  operate  the  sys- 
tem and  occasions  the  injury.  City  of  Mangum  v.  Sun  Set  Field  (Okl.)  174 
P.  501. 

Action  for  damages  caused  by  subsidence  of  surface  of  land  due  to  min- 
ing coal  therefrom  is  not  barred  by  limitations  until  two  years  have  elapsed 
after  the  subsidence.  Walsh  v.  Kansas  Fuel  Co.,  102  Kan.  29,  169  P.  219; 
Audo  v.  Western  Coal  &  Mining  Co.,  162  P.  344,  99  Kan.  454. 

Cause  of  action  for  damages  to  land  from  a  natural  enlargement  of  a  ditch 
rightfully  dug  by  defendant  on  its  right  of  way  accrued  when  ditch  invaded 
plaintiff's  land  and  damages  for  permanent  injury  were  recoverable,  and 
was  barred  when  not  commenced  within  two  years.  Civ.  Code  Kan.  §  17, 
subd.  3  (Gen.  St.  Kan.  1909,  §  5610) ;  Pever  v.  Atchison,  T.  &  S.  F.  Ry.  Co., 
164  P.  159,  100  Kan.  266. 

An  owner's  right  of  action  for  permanent  damages  from  the  pollution  of  a 
rstream  by  operation  of  a  sewer  system  and  oil  refinery  held  barred  by  limita- 
tions, where  action  was  not  brought  within  two  years  after  the  sewer  system 
and  refinery  were  in  operation.  McDaniel  v.  City  of  Cherryvale,  136  P.  899, 
•91  Kan.  40,  50  L.  R.  A.  (N.  S.)  388. 

An  adjacent  owner's  action  against  a  city  for  damages  from  overflow  caus- 
ed by  street  improvements  is  barred  by  Code  Civ.  Proc.  §  17,  subd.  3  (Gen. 
St.  1909,  §  5610),  unless  brought  within  two  years.  Beard  v.  Kansas  City, 
150  P.  540,  96  Kan.  102. 

An  action  for  damages  from  an  overflow  caused  by  defective  construction  of 
railroad  embankments  is  not  barred  by  limitations  until  more  than  two 
years  have  passed  since  the  injury,  though  the  embankments  were  construct- 
ed more  than  two  years  before.  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Eldridge,  139 
P.  254,  41  Okl.  463. 

An  action  for  personal  injuries,  being  an  action  not  arising  on  a  contract, 
must  under  Comp.  Laws  1909,  §  5550,  subd.  3,  be  brought  within  two  years 
after  cause  of  action  accrues.  Waugh  v.  Guthrie  Gas  Light,  Fuel  &  Improve- 
ment Co.,  131  P.  174,  37  Okl.  239,  L.  R.  A.  1917B,  1253. 

When  the  cause  of  injury  to  realty  is  not  permanent,  the  statute  of  lim- 
itations does  not  begin  to  run  until  the  injury  is  suffered.  St.  Louis  &  S. 
F.  R.  Co.  v.  Ramsey,  132  P.  478,  37  Okl.  448. 

The  right  of  action  against  a  city  for  injury  from  the  flooding  of  property 
by  the  negligent  construction  of  a  sewer  accrues  when  the  property  is  flooded, 
and  limitation  runs  only  from  that  date.  Kansas  City  v.  King,  68  P.  1093, 
65  Kan.  64. 

Where  a  railway  held  goods  in  its  warehouse  for  a  consignee,  and  was  in- 
duced by  wrongful  acts  of  the  consignor  to  deliver  them  to  one  not  the  own- 
er, limitations  began  to  run  on  the  cause  of  action  against  the  consignor  at 
the  time  his  tortious  act  was  committed,  and  not  from  the  time  when  the 
company  was  compelled  to  pay  to  the  consignee  the  value  of  the  goods.  Nash- 
ville, C.  &  St.  L.  Ry.  v.  Dale,  74  P.  596,  68  Kan.  108. 

Where  a  corporation  enters  on  the  building  of  another,  and  without  his 

(219) 


§§  354-355  LIMITATIONS  (Gh.  7 

Where  a  city  so  grades  and  paves  a  street  as  to  collect  the  sur- 
face water  for  a  large  area  and  discharge  it  on  the  property  of  plain- 
tiff, through  a  failure  to  provide  suitable  outlets  for  said  water, 
the  city  has  a  legal  right,  and  it  is  its  legal  duty,  to  terminate  the 
cause  of  injury,  "and  the  damage  thereby  caused  is  a  continuing 
damage,  and  the  statute  of  limitations  does  not  begin  to  run  so 
long  as  the  damage  so  continues.4 

Limitations  commence  to  run  against  an  action  against  a  city 
for  damages  for  flooding  of  land  owing  to  the  negligence  of  the  city 
in  the  paving  and  guttering  of  a  street  at  the  time  of  the  flooding, 
and  not  at  the  time  of  the  improvement  causing  the  same.5 

A  right  of  action  against  an  abstractor  for  damages  from  im- 
perfections or  error  in  an  abstract  accrues  when  the  examination 
is  reported,  and  not  when  the  error  is  discovered,  and  the  damages 
resulting  therefrom  have  been  paid.6 

In  an  action  under  the  federal  Employers'  Liability  Act  (U.  S. 
Comp.  St.  §§  8657-8665),  the  statute  of  limitations  began  to  run 
from  date  of  death,  and  not  from  date  of  accident.7 

§  355.     Guaranty 

A  guarantor  who  has  become  such  at  the  request  of  the  principal 
has  the  benefit  of  an  implied  promise  of  indemnity,  and  a  new  and 
independent  cause  of  action  arises  thereon  whenever  he  is  com- 
pelled to  make  a  payment,  irrespective  of  the  time  of  maturity  of 
original  debt.8 

consent  fastens  a  telegraph  wire  to  the  roof,  which  does  no  injury  to  the 
property  at  the  time,  but  thereafter,  on  account  of  additional  wires  being 
connected  with  the  wire  so  fastened  the  building  is  greatly  damaged,  the 
right  of  action  for  such  damage  arises  from  the  placing  of  the  additional 
wires,  and  the  statute  of  limitations  begins  to  run  only  from  that  time.  West- 
ern Union  Tel.  Co.  v.  Moyle,  32  P.  895,  51  Kan.  203. 

*  City  of  Kansas  City  v.  Frohwerk,  62  P.  432,  10  Kan.  App.  120. 

e  City  of  Kansas  City  v.  Frohwerk,  62  P.  252,  10  Kan.  App.  116. 

e  Walker  v.  Bowman,  111  P.  319,  27  Okl.  172,  30  L.  R.  A.  (N.  S.)  642,  Ann. 
Cas.  1912B,  839,  reversing  judgment  105  P.  649,  on  rehearing;  Provident 
Loan  Trust  Co.  v.  Wolcott,  47  P.  8,  5  Kan.  App.  473. 

7  Lindsay  v.  Chicago,  R.  I.  &  P.  Ry.  Co..  56  Okl.  234,  155  P.  1173. 

s  Leslie  v.  Compton,  172  P.  1015,  103  Kan.  92,  L.  R.  A.  1918F,  706. 

(220) 


Art.  3)  WHEN    STATUTE   BEGINS   TO   RUN  §§    356~359 

|  356.    Malfeasance  in  office 

A  cause  of  action  against  a  court  clerk  for  moneys  of  litigants 
received  in  his  official  capacity  accrues  and  limitation  begins  to  run 
upon  his  conversion  of  such  moneys.9 

§  357.    Statutory  liability 

That  a  cause  of  action  is  created  by  statute  and  did  not  exist  at 
common  law  does  not  necessarily  prevent  the  limitation  as  te  time 
within  which  same  may  be  brought  from  being  subject  to  tolling 
provisions  of  statute.10 

Where  a  lien  on  the  rents  and  profits  of  land  was  created  by 
operation  of  law  to  pay  the  value  of  improvements,  the  statute  of 
limitations  would  not  run  so  long  as  the  rents  and  profits  were 
being  applied  to  the  extinguishment  of  the  lien.11 

§  358.     Equitable  actions 

Limitations  against  a  creditor's  bill  begin  to  run  from  return  of 
an. execution  on  judgment  nulla  bona.12 

Limitations  will  not  commence  to  run  against  a  cause  of  action 
on  an  executory  contract  to  enforce  specific  performance,  while 
the  grantor  is  receiving  from  the  grantee  payments  on  the  contract 
as  part  performance  thereof.13 

Where  one  sells  land  to  others  executing  a  bond  for  a  deed,  and 
they  on  their  part  execute,  as  a  part  of  the  purchase  price,  their 
promissory  notes,  and  the  owner  conveys  the  land  to  plaintiffs  by 
a  warranty  deed,  in  pursuance  of  a  prior  contract  of  sale,  plaintiffs' 
right  to  be  subrogated  to  the  rights  of  the  vendor  on  the  notes  of 
defendants  accrues  on  the  execution  of  their  deed.14 

§  359.     Conditions  precedent 

The  statute  of  limitations  on  a  cause  of  action  in  the  nature  of  a 
creditors'  bill  begins  to  run  from  the  time  an  execution  on  the  judg- 
ment is  returned  nulla  bona,  and  not  from  the  date  of  the  fraudu- 
lent transfer  of  the  property,  sought  to  be  subjected  to  the  judg- 
ment.15 

»  Purcell  Bank  &  Trust  Co.  v.  Byars  (Okl.)  167  P.  216. 

10  Bean  v.  Rumrill  (Okl.)  172  P.  453. 

11  Silversmith  v.  Hart  (Okl.)  173  P.  451. 

12  Indian  Land  &  Trust  Co.  v.  Owen,  63  Okl.  327,  162  P.  818. 
is  Burnell  v.  Bradbury,  74  P.  279,  67  Kan.  762. 

14  Brown  v.  Pilcher,  58  P.  560,  60  Kan.  860. 
is  Blackwell  v.  Hatch,  73  P.  933,  13  Okl.  169. 

(221) 


§§  359-360  LIMITATIONS  (Ch.  7 

Running  of  limitations  in  an  action  to  subject  property  fraud- 
ulently conveyed  cannot  be  indefinitely  postponed  by  the  delay  of 
the  creditor  in -reducing"  his  claim  to  judgment.16 

Where  a  deed  described  a  certain  mortgage,  "which  grantee  as- 
sumes and  agrees  to  pay,"  limitations  begin  to  run  from,  acceptance 
of  the  deed  by  the  grantee.17 

Although  during  pendency  of  suit  defendant  conveys  realty,  of 
which  plaintiff  had  knowledge  limitations  do  not  begin  to  run 
against  plaintiff's  right  to  subject  the  land  to  payment  of  his  claim 
until  judgment  has  been  rendered  in  the  original  action,  if  pros- 
ecuted with  reasonable  diligence.18 

Where  a  deed  is  executed  and  delivered  as  an  escrow,  to  take 
effect  on  the  grantor's  death,  the  consideration  therefor  is  not  due 
until  then,  and  the  cause  of  action  for  the  consideration  does  not  ac- 
crue, nor  does  the  statute  of  limitations  begin  to  run,  until  an  ad- 
ministrator is  appointed.19 

An  action  in  the  nature  of  a  creditors'  bill  to  set  aside  a  fraud- 
ulent conveyance  of  land,  and  to  subject  the  same  to  the  payment 
of  a  judgment,  must  be  brought  within  two  years  after  the  plaintiff 
is  in  position,  by  reason  of  his  judgment,  to  maintain  the  suit.20 

§  360.     Trust 

Limitations  ordinarily  do  not  commence  to  run  against  a  trustee 
until  he  repudiates  the  trust  or  denies  his  liability,  and  it  should 
appear  that  the  beneficiary  had,  or  ought  to  have  had,  knowledge 
of  such  repudiation  or  denial.21 

is  Donaldson  v.  Jacobitz,  72  P.  846,  67  Kan.  244. 
i*  Hendricks  v.  Brooks,  101  P.  622,  80  Kan.  1,  133  Am.  St.  Rep.  186. 
is  Young  v.  Buck,  154  P.  1010,  97  Kan.  195,  denying  rehearing  154  P.  213, 
97  Kan.  39. 

i»  Mills  v.  Mills,  23  P.  944,  43  Kan.  699. 

20  Taylor  v.  Lander,  60  P.  320,  61  Kan.  588,  judgment  Lander  v.  Pollard, 
46  P.  975,  5  Kan.  App.  621,  affirmed. 

21  Oooley  v.  Gilliam,  102  P.  1091,  80  Kan.  278. 

The  statute  does  not  commence  to  run  in  favor  of  a  trustee  of  land,  as 
against  the  beneficiary,  until  a  renunciation  of  the  trust.  Kansas  City  Inv. 
Co.  v.  Fulton,  46  P.  188,  4  Kan.  App.  115. 

A  suit  to  impress  money  as  a  trust,  filed  as  an  amended  petition  in  1911  to 
an  action  begun  in  1907  for  money  paid  by  mistake,  held  barred  by  limita- 
tions, where  the  trust  had  been  disavowed  in  1903  with  notice  to  all  parties 
interested.  Nicholson  v.  Nicholson,  146  P.  340,  94  Kan.  153.  The  act  of  a 
party  in  obtaining  money  in  1898,  and  refusing  to  return  it  in  1903,  with  full 

(222) 


Art.  4)  LIMITATION  PERIODS  §§  360-362 

Where  a  trust  results  by  implication  of  law,  a  recognition  by  the 
trustee  of  the  rights  of  the  equitable  owner  tolls  the  running  of 
limitations  until  the  holder  of  the  title  disavows  the  trust.22 

Limitations  against  an  action  by  a  Grand  Lodge  against  a  bank 
for  the  amount  of  an  overdraft  by  the  defaulting  treasurer  of  the 
lodge  do  not  begin  to  run  in  favor  of  the  bank  until  the  beneficiary 
discovered  the  breach  of  trust.23 


ARTICLE  IV 

LIMITATION  PERIODS 

Sections 

361.  Application  of  statutes. 

362.  Real  actions. 

363.  Other  actions. 

364.  Fraud. 

365.  Foreign  judgment — Bonds,  etc. 

366.  Action  for  recovery  of  estate  sold  by  guardian. 

367.  Liens. 

368.  Liens  against  railroads. 

369.  Actions  against  notaries. 

370.  Rejected  claim. 

371.  Vacancy  in  administration. 

372.  Action  against  sureties  on  bond. 

373.  Actions  for  wrongful  death. 

374.  Assessments — Suits  to  set  aside. 

375.  Demand — Tender. 

376-  Actions  for  usurious  interest. 

377.  Tax  deed. 

378.  Nonresident  alien  landowners. 

§  361.     Application  of  statutes 

Civil  actions  can  only  be  commenced  within  the  periods  pre- 
scribed in  this  article,  after  the  cause  of  action  shall  have  accrued ; 
but  where,  in  special  cases,  a  different  limitation  is  prescribed  by 
statute,  the  action  shall  be  governed  by  such  limitation."  24 

§  362.     Real  actions 

"Actions  for  the  recovery  of  real  property,  or  for  the  determi- 
nation of  any  adverse  right  or  interest  therein,  can  only  be  brought 

knowledge  of  all  parties  from  the  latter  date,  held  such  a  denial  of  a  claim 
that  the  money  was  a  trust  fpnd  that  suit  should  have  been  brought  within 
the  limitation  period.  Id. 

22  Hunnicutt  v.  Oren,  114  P.  1059,  84  Kan.  460. 

23  Washbon  v.  Linscott  State  Bank,  125  P.  17,  87  Kan.  698. 
z*  Rev.  Laws  1910,  §  4654. 

(228) 


§  362  LIMITATIONS  (Ch.  7 

within  the  periods  hereinafter  prescribed,  after  the  cause  of  action 
shall  have  accrued,  and  at  no  time  thereafter: 25 

"First.  An  action  for  the  recovery  of  real  property  sold  on  exe- 
cution, brought  by  the  execution  debtor,  his  heirs,  or  any  person 
claiming  under  him,  by  title  acquired  after  the  date  of  the  judg- 
ment, within  five  years  after  the  date  of  the  recording  of  the  deed 
made  in  pursuance  of  the  sale.20 

"Second.  An  action  for  the  recovery  of  real  property  sold  by 
executors,  administrators  or  guardians,  upon  an  order  or  judgment 
of  a  court  directing  such  sale,  brought  by  the  heirs  or  devisees  of 
the  deceased  person,  or  the  ward  or  his  guardian,  or  any  person 
claiming  under  any  or  either  of  them,  by  the  title  acquired  after 
the  date  of  the  judgment  or  order,  within  five  years  after  the  date 
of  the  recording  of  the  deed  made  in  pursuance  of  the  sale.27 

"Third.  An  action  for  the  recovery  of  real  property  sold  for 
taxes,  within  two  years  after  the  date  of  the  recording  of  the  tax 
deed.28 

25  The  statute  of  limitations  contained  in  St.  1893,  §  5668,  relating  to  ac- 
tions to  recover  possession  of  realty,  does  not  apply  to  an  action  to  quiet 
title.    Lowenstein  v.  Sexton,  90  P.  410,  18  Okl.  322. 

26  The  five-year  statute  of  limitations  (Code  Civ.  Proc.  §  15  [Gen.  St.  1909, 
§   5608]),   against  actions  for  recovery   of  real  property   sold  on  execution 
brought  by  the  execution  debtor  or  any  person  claiming  under  him  by  title 
acquired  after  the  judgment,  applies  to  all  sales,  void  and  voidable.    James  v. 
Logan,  108  P.  81,  82  Kan.  285,  136  Am.  St.  Rep.  105. 

27  The  purchaser  of  land  at  guardian's  sale  under  order  of  probate  court, 
after  five  years  from  record  of  deed,  is  not  barred  by  Rev.  Laws  1910,  §  4655, 
subd.  2,  from  bringing  suit  against  one  in  possession  for  more  than  one  year 
and  claiming  under  a  title  having  no  relation  to  the  guardianship  proceed- 
ings.   Drennan  v.  Harris  (Okl.)  161  P.  781. 

The  five-year  statute  of  limitations  (Civ.  Code  Kan.  §  15,  subd.  2  [Gen.  St. 
Kan.  1909,  §  5608])  held  not  to  apply  to  an  action  to  recover  realty  by  one 
claiming  title  from  a  source  paramount  to  an  administrator's  deed.  Byerly 
v.  Eadie,  148  P.  757,  95  Kan.  400,  judgment  modified  150  P.  523,  96  Kan.  137. 
An  heir  or  devisee  having  title  paramount  to,  and  independent  of,  that  claim- 
ed by  decedent,  may.  sue  to  quiet  title  or  to  recover  possession  irrespective  of 
the  five-year  statute  (Civ.  Code  Kan.  §  15,  subd.  2  [Gen.  St.  Kan.  1909,  § 
5608]).  Id. 

The  five-year  limitation  prescribed  by  Gen.  St.  Kan.  1909,  §  5608  (Code  Civ. 
Proc.  Kan.  §  15),  subd.  2,  does  not  apply  to  an  action  to  recover  land  sold  by 
one  as  guardian,  who  was  not  so  appointed.  Harrison  v.  Miller,  123  P.  854, 
87  Kan.  48. 

2s  Where  the  holder  of  a  valid  tax  deed,  before  the  two-year  limitation  has 
barred  his  right  to  recover  possession  under  it,  obtains  the  actual  and  peace- 
able possession  of  the  land,  the  statute  is  satisfied,  and,  if  he  thereafter  loses 

(224) 


Art.  4)  LIMITATION  PERIODS  §§  362-363 

"Fourth.  An  action  for  the  recovery  of  real  property  not  here- 
inbefore provided  for,  within  fifteen  years.29  • 

"Fifth.  An  action  for  the  forcible  entry  and  detention,  or  forcible 
detention  only,  of  real  property,  within  two  years."  30 

§  363.     Other  actions 

"Civil  actions,  other  than  for  the  recovery  of  real  property,  can 
only  be  brought  within  the  following  periods,  after  the  cause  of 
action  shall  have  accrued,  and  not  afterwards : 

"First.  Within  five  years :  An  action  upon  any  contract,  agree- 
ment or  promise  in  writing.31 

possession,  his  right  to  recover  it  continues  until  barred  by  the  general  stat- 
ute of  limitations.  Buckner  v,  Wingard,  115  P.  636,  84  Kan.  682. 

Plaintiff  assigned  a  land  certificate  in  blank  and  forwarded  it  to  defend- 
ant in  1896,  with  authority  to  insert  the  name  of  a  purchaser,  but  defendant 
inserted  his  own  name  as  assignee,  and  had  the  assignment  recorded  in  1900 
without  paying  any  consideration  therefor,  and  in  1899  paid  certain  deferred 
payments  then  due,  preventing  forfeiture,  and  obtained  a  patent  in  1905. 
Plaintiff  learned  on  February  9,  1900,  that  defendant  held  the  land  in  his 
own  name  as  his  own,  and  brought  an  action  in  1905  to  recover  the  land  on 
the  ground  of  fraud  in  inducing  him  to  assign  the  certificate  in  blank,  where- 
by defendant  was  enabled  to  insert  his  own  name  as  purchaser.  Held  that, 
if  plaintiff  had  any  cause  of  action  to  recover  the  land,  it  was  barred  by  the 
two-year  statute  of  limitations.  Martin  v.  Cochran,  106  P.  45,  81  Kan.  602. 

29  Action  to  cancel  void  conveyance  is  not  barred  by  any  lapse  of  time 
short  of  that  sufficient  to  establish  title  by  prescription,  as  fixed  by  Laws 
1910,  §  4655,  subd.  4.  Burckhalter  v.  Vann,  59  Okl.  114,  157  P.  1148. 

Where  primary  purpose  of  action  was  to  recover  possession  of  land,  though 
cancellation  of  deed  was  asked,  the  15-year  statute  of  limitations  found  in 
Rev.  Laws  1910,  §  4655,  subd.  4,  applies.  Campbell  v.  Dick  (Okl.)  176  P.  520. 

Where  primary  purpose  of  an  action  is  recovery  of  real  property,  and  in- 
cidental relief  is  sought,  Rev.  Laws  1910,  §  4655,  subd.  4,  limiting  time  of 
bringing  suit  to  15  years,  and  section  4657,  subd.  3,  does  not  apply,  notwith- 
standing the  incidental  relief  sought  is  that  deed  obtained  by  fraud  be  de- 
clared a  mortgage.  Franklin  v.  Ward  (Okl.)  174  P.  244. 

In  an  action  to  quiet  title,  defendant,  by  cross  petition  and  answer,  alleged 
that  he  was  joint  owner  with  plaintiff  of  the  land,  that  plaintiff  was  in  pos- 
session, and  held  the  legal  title  in  trust  for  him,  and  asked  for  a  recovery, 
to  have  all  adverse  interest  determined,  and  also  for  an  accounting  for  taxes 
and  improvements.  Held,  that  defendant's  main  cause  of  action  was  for  the 
recovery  of  real  property,  and  the  statutory  limitation  of  15  years  was  appli- 
cable. Reihl  v.  Likowski,  6  P.  886,  33  Kan.  515. 

so  Rev.  Laws  1910,  §  4655. 

31  An  action  to  recover  damages  on  an  attachment  bond  is  an  action  on  a 
written  contract,  and  is  not  barred  until  the  expiration  of  five  years  from 
the  time  the  right  of  action  accrues.  Baker  v.  Skinner,  64  P.  981,  63  Kan.  83. 

An  instrument  acknowledging  receipt  of  a  sum  of  money,  and  stating  that 
the  party  receiving  it  deducted  the  same  from  the  purchase  price  of  described 

HON.PL.&  PRAC— 15  (225) 


§  363  LIMITATIONS  (Ch.  7 

"Second.  Within  three  years:  An  action  upon  a  contract  ex- 
press or  implied,  not  in  writing ;  an  action  upon  a  liability  created 
by  statute,  other  than  a  forfeiture  or  penalty.32 

land  as  commission  for  the  sale,  as  the  commission  belonged  to  a  third  person 
and  by  agreement  was  to  be  deducted  from  the  price  is  not  an  agreement, 
contract,  or  promise  in  writing  upon  which  an  action  may  be  brought  within 
five  years,  but  is  a  mere  receipt  for  the  money.  Lewis  v.  Norris,  103  P.  134, 
80  Kan.  620.  An  instrument  acknowledging  receipt  of  a  sum  of  money  as 
belonging  to  a  person  named,  but  containing  no  statement  of  any  fact  from 
which  the  law  implies  an  obligation  or  promise,  is  not  an  agreement,  contract, 
or  promise  in  writing  upon  which  an  action  may  be  brought  within  five  years. 
Id. 

Where  one  contracts  in  writing  to  drill  gas  wells  to  be  paid  for  whenever 
a  paying  well  has  been  drilled,  and  the  other  party  refuses  to  make  payment 
and  the  work  is  abandoned,  an  action  for  the  work  already  done  is  an  action 
upon  the  contract  governed  by  five-year  limitations.  Bailey  v.  Fredonia  Gas 
Co.,  109  P.  411,  82  Kan.  746. 

A  township  warrant  is  such  a  promise  in  writing  that  an  action  may  be 
brought  thereon  against  such  township  at  any  time  within  five  years  from  the 
date  of  its  issue.  Walnut  Township  v.  Jordan,  16  P.  812,  38  Kan.  562. 

In  an  action  on  a  note  and  mortgage  securing  the  same,  the  limitations  pre- 
scribed by  Gen.  St.  Kan.  1901,  §  4446,  apply,  and  not  those  of  section  4444, 
relating  to  actions  for  the  recovery  of  real  property,  and  not  for  the  recov- 
ery of  money.  Kirk  v.  Andrew,  97  P.  797,  78  Kan.  612. 

In  an  action  on  a  note,  wherein  the  defense  was  limitations,  it  was  error 
to  instruct  that,  unless  a  partial  payment  indorsed  on  the  note  was  made  on 
the  date  indorsed,  plaintiff  could  not  recover,  and  to  refuse  an  instruction 
that  the  action  would  not  be  barred  if  payment  was  made  at  or  near  such 
date,  and  within  the  statutory  period  of  limitation,  though  plaintiff  testified 
that  the  payment  was  made  on  the  date  stated.  Keener  v.  Lloyd,  133  P.  710, 
90  Kan.  250. 

An  action  by  a  partner  to  enforce  a  constructive  trust  arising  in  his  favor 
by  acts  of  his  copartner  is  barred  in  five  years  unless  cause  for  the  delay  is 
shown.  Hackett  v.  Pratt,  49  P.  100,  5  Kan.  App.  586. 

32  An  action  on  a  judgment  held  not  an  action  on  a  contract,  and  therefore 
barred  within  three  years  under  Rev.  Laws  1910,  §  4657,  subsec.  2.  Wake- 
man  v.  Peter,  52  Okl.  639,  152  P.  455. 

Action  to  recover  share  of  partnership  losses,  where  alleged  partnership 
agreement  was  oral,  and  where  existence  of  partnership  was  denied,  was  an 
action  to  establish  partnership  agreement,  based  upon  a  "contract  not  in 
writing,"  and  within  the  three-year  limitation.  Patterson  v.  Bonner  (Okl.) 
175  P.  826. 

An  action  to  recover  public  money  unlawfully  received  by  a  public  officer 
is  barred  in  three  years.  Shelton  v.  State,  62  Okl.  105,  162  P.  224. 

A  suit  by  the  guardian  of  a  minor  against  a  former  guardian  and  sureties 
to  recover  the  amount  due  to  the  ward  was  not  barred  when  it  was  begun 
within  three  years  from  the  date  of  former  guardian's  settlement  in  county 
court  and  during  ward's  minority.  Driskill  v.  Quinn  (Okl.)  170  P.  495. 

Kansas  cases. — A  cause  of  action  against  a  guardian  for  a  balance  due 

(226) 


Art.  4)  LIMITATION. PERIODS  §    363 

when  the  ward  reached  the  age  of  majority  accrues  at  that  time,  and  is  a 
liability  created  by  statute,  to  which  the  three-year  limitation  applies,  under 
Code  Civ.  Proc.  1909.  §  17,  subd.  2  (Gen.  St.  1909,  §  5610),  though  the  action  is 
on  the  guardian's  bond.  Hawk  v.  Sayler,  83  Kan.  775,  112  P.  602. 

A  judgment  was  rendered  against  a  corporation  June  30,  1906.  Execution 
issued  February  15,  1907,  and  was  returned  unsatisfied  for  want  of  property 
on  which  to  levy.  Held,  that  the  judgment  creditor  had  three  years  there- 
after in  which  to  begin  an  action  to  enforce  the  judgment  against  a  stock- 
holder. Douglass  v.  Loftus,  119  P.  74,  85  Kan.  720,  L.  R.  A.  1915B,  797,  Ann. 
Cas.  1913A,  378. 

The  liability  of  an  officer  to  pay  over  money  to  the  county  treasurer,  as 
required  by  law,  is  one  created  by  statute;  and  an  action  thereon  against 
the  sureties  on  the  bond  can  only  be  brought  within  three  years  after  the 
cause  of  action  has  accrued.  Board  of  Com'rs  of  Cloud  County  v.  Hostetler, 
51  P.  62,  6  Kan.  App.  286. 

A  civil  action,  brought  under  Gen.  St.  1897,  c.  18,  §  74,  against  bank  offi- 
cers, for  the  recovery  of  deposits  received  by  them  when  the  bank  was  in  a 
failing  condition,  is  on  a  "liability  created  by  statute,"  within  Civ.  Code,  § 
12,  subd.  2,  requiring  such  action  to  be  brought  within  three  years.  Seglem 
v.  Yaeger,  56  P.  508,  8  Kan.  App.  655. 

Under  Code  Civ.  Proc.  §  17  (Gen.  St.  1915,  §  6907),  an  action  on  a  liability 
imposed  by  statute,  including  the  statutes  of  Arkansas,  is  barred  in  three 
years  after  such  statutory  liability  has  accrued.  Davis  v.  Drury,  105  Kan. 
69,  181  P.  559. 

A  civil  action  by  the  state  to  enforce  a  lien  for  fines  and  costs  against  the 
owner  of  real  estate  who  has  knowingly  suffered  a  person  to  sell  liquor  there- 
on in  violation  of  law  is  an  action  "on  a  liability  created  by  statute,"  within 
the  meaning  of  Code,  §  18,  subd.  2,  which  provides  that  an  action  on  a  liabil- 
ity created  by  statute  is  barred  in  three  years,  and  is  not  an  action  on  a 
"statute  for  a  penalty  or  forfeiture,"  within  the  meaning  of  subdivision  4, 
barring  such  actions  in  one  year.  State  v.  Pfefferle,  7  P.  597,  33  Kan.  718. 

An  action  under  Acts  1881,  §  15,  for  damages  by  sale  of  intoxicating  liq- 
uors, is  purely  statutory,  and  must  be  commenced  within  three  years  after 
the  cause  of  action  shall  have  accrued  as  prescribed  by  subdivision  2  of  sec- 
tion 18  of  the  Code ;  the  action  being  on  a  liability  created  by  statute  other 
than  a  forfeiture  or  penalty.  Durein  v.  Pontious,  8  P.  428,  34  Kan.  353. 

The  three-year  statute  of  limitation  (Code  Civ.  Proc.  §  18,  subd.  2),  appli- 
cable to  actions  on  liabilities  created  by  statute,  has  no  application  to  an 
original  action  in  the  supreme  court,  instituted  by  the  attorney  general  in 
the  name  of  the  state,  to  compel  the  officers  of  a  county  to  keep  their  offices 
at  the  county  seat,  and  to  determine  its  location ;  it  being  but  an  exercise  of 
the  sovereign  power  of  the  state  compelling  obedience  to  its  statutory  man- 
dates. (1887)  State  v.  Stock,  16  P.  106,  38  Kan.  154,  rehearing  denied  (1888) 
16  P.  799,  38  Kan.  184. 

An  action  on  the  official  bond  of  a  county  clerk  to  recover  fees  wrongfully 
retained  is  an  action  on  a  liability  created  by  statute,  and  barred  by  the 
three-year  statute  of  limitations  (Civ.  Code,  §  IS,  subd.  2),  and  is  not  governed 
by  section  18,  subd.  5,  providing  that  an  action  on  an  official  bond  can  be 
brought  only  within  five  years  after  the  cause  of  action  accrues.  Board  of 
Com'rs  of  Graham  County  v.  Van  Slyck,  35  P.  299,  52  Kan.  622. 

The  liability  of  an  administrator  for  failure  to  pay  over  money  of  the  es- 

(227) 


§  363  LIMITATIONS  (Ch.  7 

tate  to  his  successor  when  ordered  to  do  so  by  the  probate  court  is  one  cre- 
ated by  statute,  and  an  action  thereon  by  the  administrator  de  bonis  non 
against  the  sureties  upon  the  bond  of  the  former  administrator  can  only  be 
brought  within  three  years  after  the  cause  of  action  has  accrued.  Davis  v. 
Clark,  49  P.  665,  58  Kan.  454. 

A  civil  action  brought  under  Gen.  St.  1897,  c.  18,  §  74,  against  bank  officers 
for  the  recovery  of  deposits  received  by  them  when  the  bank  was  in  a  failing 
condition,  is  upon  a  "liability  created  by  statute,"  and  is  therefore  governed 
by  Civ.  Code,  §  12,  subd.  2,  prescribing  three  years  as  the  limit  for  bringing 
an  action  on  such  liability.  Judgment  Ashley  v.  Frame  (1896)  45  P.  927,  4 
Kan.  App.  265,  reversed.  Frame  v.  Ashley,  53  P.  474,  59  Kan.  477. 

The  three-year  statute  of  limitations  of  Code  Civ.  Proc.  div.  3,  §  18  (Gen. 
St.  1901,  §  4446),  does  not  bar  the  issuance  and  enforcement  of  an  execution 
under  an  order  of  court  therefor,  made  pursuant  to  the  statute  relative  to  the 
double  liability  of  stockholders  in  a  corporation,  as  the  issuance  and  enforce- 
ment of  such  an  execution  is  not  the  bringing  of  a  "civil  action,"  within  such 
section,  and  the  execution  is  based  on  the  order  awarding  it,  and  not  on  the 
statutory  liability  of  the  stockholder.  Wheeler  v.  Chenault,  66  P.  1010,  63 
Kan.  730. 

The  obligation  resting  on  a  township,  which  is  a  legal  successor  of  a  coun- 
ty covering  the  same  territory,  and  which  has  received  the  assets  of  such 
county,  is  not  a  statutory  one,  nor  an  implied  obligation,  as  those  terms  are 
used  in  the  statute  of  limitations,  but  is  an  obligation  identical  with  that 
which  rested  upon  the  original  county.  Van  Auken  v.  Garfield  Tp.,  Finney 
County,  72  P.  211,  66  Kan.  594. 

The  statute  requiring  actions  to  enforce  a  liability'  created  by  statute  to  be 
brought  within  three  years  does  not  apply  to  suits  brought  to  enforce  tax 
liens.  Whitney  v.  Board  of  Com'rs  of  Morton  County,  85  P.  530,  73  Kan.  502. 

Where  mother  conveyed  land  to  sons  on  oral  agreement  to  care  for  her 
during  her  life,  action  by  her  daughter  22  years  after  mother's  death  to  can- 
cel deed  for  nonperformance  by  grantees  is  barred  by  limitations.  Wilson 
v.  Highley,  157  P.  411,  98  Kan.  154. 

Where  the  joint  maker  of  a  note  pays  the  same,  and  afterwards  sues  the 
other  joint  maker  to  recover  the  amount  paid,,  on  the  ground  that  plaintiff 
was  only  a  surety,  and  there  is  no  written  agreement  between  the  parties 
that  plaintiff  should  be  liable  only  as  surety,  his  action  is  011  a  contract  not 
in  writing,  and  must  be  brought  within  three  years  after  he  pays  the  note, 
under  Comp.  Laws,  §  3811.  Guild  v.  McDaniels,  23  P.  607,  43  Kan.  548. 

An  action  to  recover  rents  for  land  wrongfully  withheld  is  founded  on  an 
implied  contract  to  which  the  three-year  statute  of  limitations  applies.  Har- 
lan  v.  Loomis,  140  P.  845,  92  Kan.  398. 

A  cause  of  action  for  rents  and  profits,  although  joined  with  one  in  the 
nature  of  ejectment,  is  founded  on  an  implied  contract,  and  therefore  the 
three-year  limitation  provided  in  Civ.  Code,  §  18,  subd.  2,  applies.  Seibert  v. 
Baxter,  12  P.  934,  36  Kan.  189. 

A  claim  against  the  assignee  of  an  insolvent  firm  for  a  trust  fund,  which 
came  into  his  hands  with  the  assigned  estate,  is  barred  by  the  three-years 
statute  of  limitations,  though  the  contract  with  reference  thereto  between 
the  claimant  and  the  assignor  was  in  writing.  The  assignee's  liability  to  ac- 
count as  trustee  for^he  claimant  is  founded  not  on  the  contract,  but  on  his 

(228) 


Art.  4)  LIMITATION   PERIODS  §    363 

"Third.  Within  two  years :  An  action  for  trespass  upon  real 
property;  an  action  for  taking,  detaining  or  injuring  personal 
property,  including  actions  for  the  specific  recovery  of  personal 
property;  an  action  for  injury  to  the  rights  of  another,  not  arising 
on  contract,  and  not  hereinafter  enumerated;  an  action  for  relief 
on  the  ground  of  fraud — the  cause  of  action  in  such  case  shall  not 
be  deemed  to  have  accrued  until  the  discovery  of  the  fraud."  33 

receipt  of  funds  which  in  equity  belong  to  the  claimant.  Burrows  v.  Johntz, 
48  P.  27,  57  Kan.  778. 

Where  a  candidate  for  a  state  office  was  charged  with  misconduct  as  coun- 
ty clerk  and  requested,  in  writing,  the  county  board  to  inform  him  whether 
he  was  indebted  to  the  county,  and  agreed  to  be  bound  by  their  decision,  and 
on  their  report  .that  he  owed  a  certain  sum,  paid  it,  and  subsequently  brought 
suit  to  recover,  claiming  that  the  payment  was  under  duress,  his  right  of 
action,  if  any,  was  on  the  county's  implied  contract  to  restore  the  money,  and 
not  under  a  written  contract ;  and  hence  the  statute  of  limitations  applicable 
was  the  three-year  statute,  and  not  that  of  five  years.  Kelly  v.  Board  of 
Com'rs  of  Miami  County,  116  P.  477,  85  Kan.  38. 

An  action  against  an  abstracter  of  titles  for  damages  for  giving  a  wrong 
certificate  of  title  is  not  one  on  the  bond  which  he  has  given  pursuant  to 
statute,  nor  on  an  agreement  in  writing  (Code  Civ.  Proc.  §  18,  subd.  1),  but 
on  a  contract  not  in  writing  (subdivision  2),  and  is  hence  barred  in  three 
years.  Provident  Loan  Trust  Co.  v.  Wolcott,  47  P.  8,  5  Kan.  App.  473. 

Action  for  services  and  materials,  begun  three  years  and  two  months  after 
they  were,  furnished,  is  barred  by  limitation.  Wichita  Water  Co.  v.  City  of 
Wichita,  158  P.  49,  98  Kan.  256. 

A  passbook  given  by  a  bank  to  a  depositor  is  not  a  written  contract,  but 
is  a  mere  receipt  for  the  amount  deposited ;  and  an  action  thereon  is  barred 
by  the  three-year  limitation.  Civ.  Code,  §  18.  Talcott  v.  First  Nat.  Bank,  36 
P.  1066,  53  Kan.  480,  24  L.  R.  A.  737. 

An  action  for  the  recovery  of  damages  for  a  failure  to  comply  with  the 
terms  of  a  written  agreement  to  erect  a  house,  and  to  furnish  all  labor  and 
material  therefor,  is  an  action  upon  an  agreement,  contract,  or  promise  in 
writing,  and  is  not  barred  by  the  three-years  statute  of  limitations.  Lingren 
v.  Fletcher,  56  P.  328,  8  Kan.  App.  376. 

Where  plaintiff  and  defendant  agreed  in  writing  to  erect  a  building,  each 
to  pay  one-half  the  cost,  an  action  by  plaintiff  for  a  sum  paid  by  him  in  ex- 
cess of  his  half  was  not  barred  in  three  years.  Ross  v.  Wellington  Lodge  Xo. 
133,  I.  O.  O.  F.,  146  P  1003,  94  Kan.  528. 

ss  Rev.  Laws  1910,  §  4657. 

Actions  for  specific  recovery  of  personal  property  must  be  brought  within 
two  years.  Torrey  v.  Campbell  (Okl.)  175  P.  524. 

Action  for  wrongfully  killing  cattle  must  be  brought  within  two  years. 
Missouri,  K.  &  T.  Ry.  Co.  v.  Wilcox,  121  P.  656,  32  Okl.  51. 

Limitation  of  two  years,  not  fifteen-year  lynita-tion,  applies  to  action  in 
ejectment  in  form,  but  in  substance  for  relief  for  fraud.  Campbell  v.  Dick 
(Okl.)  157  P.  1062. 

In  replevin,  where  plaintiff  contended  that  he  had  acquired  title  to  proper- 

(229) 


§  363  LIMITATIONS  (Ch.  7 

ty  by  possession  for  two  years,  held  that,  tinder  evidence,  two-year  statute 
of  limitations  was  not  applicable.  Mc-Laughlin  v.  Dugan  (Okl.)  166  P.  1069. 

Kansas  cases. — Under  Civ.  Code,  §  18,  declaring  that  actions  for  taking, 
detaining,  or  injuring  personal  property  must  be  brought  within  two  years, 
and  actions  on  the  official  bonds  of  sheriffs,  etc.,  within  five  years,  an  action 
on  a  sheriff's  bond  for  the  wrongful  levy  on  and  sale  of  personal  property 
must  be  brought  within  two  years.  Ryus  v.  Gruble,  3  P.  518,  31  Kan.  767. 

Under  Civ.  Code,  §  18,  subd.  3,  ah  action  against  a  city  for  injuries  by  a 
change  of  the  channel  of  a  stream  by  a  permanent  improvement  must  be 
brought  within  two  years  after  such  change.  Parker  v.  City  of  Atchison,  4S 
P.  631,  58  Kan.  29. 

Under  Civ.  Code,  §  18,  declaring  that  actions  for  taking,  detaining,  or  in- 
juring personal  property  must  be  brought  within  two  years,  and  actions  on 
fhe  official  bonds  of  sheriffs,  etc.,  within  five  years,  an  action  on  a  sheriff's 
bond  for  the  wrongful  levy  on  and  sale  of  personal  property  must  be  brought 
within  two  years.  Ryus  v.  Gruble,  3  P.  518,  31  Kan.  767. 

Comp.  Laws  1885,  c.  66,  §  14,  which  provides  that  actions  for  damages  by 
the  erection  of  a  milldam  must  be  brought  within  two  years  after  the  erec- 
tion of  the  dam,  applies  only  to  permanent  obstructions,  and  does  not  apply 
to  actions  for  the  recovery  of  damages,  where  the  upper  proprietor,  who  has 
actually  built,  and  has  in  operation,  a  mill  and  milldam,  seeks  to  have  the 
dam  of  defendant  abated  or  lowered  as  an  obstruction,  and  has  commenced, 
within  two  years  after  the  completion  of  the  dam,  an  action  to  abate  or  low- 
er it.  Hardesty  v.  Ball,  23  P.  937,  43  Kan.  151,  modifying  judgment  22  P. 
1095. 

A  cause  of  action  founded  upon  an  allegation  that  the  register  of  deeds 
"wrongfully,  willfully,  and  negligently"  recorded  an  instrument,  and  failed 
to  insert  in  the  record  the  correct  description  of  the  land  conveyed,  by  rea- 
son of  which  the  plaintiff  was  damaged,  is  "an  action  for  injury  to 'the  rights 
of  another,  not  arising  on  contract,"  and  such  action  can  only  be  commenced 
within  two  years  after  the  cause  of  action  accrues.  Hatfield  v.  Malin,  50  P. 
108,  6  Kan.  App.  855. 

An  employe's  action  for  injuries  from  the  master's  failure  to  comply  with 
the  Factory  Act  (Laws  1903,  c.  356,  Gen.  St.  1909,  §§  4676,  4683)  is  not  barred 
by  Code  Civ.  Proc.  §  17,  subd.  4  (Gen.  St.  1909,  §  5610),  providing  that  an  ac- 
tion upon  a  statute  for  a  penalty  or  forfeiture  shall  be  barred  within  one 
year,  but  is  an  action  for  injury  to  the  rights  of  another  not  arising  on  con- 
tract, which  carries  a  two  years'  limitation.  Slater  v.  Atchison,  T.  &  S.  F. 
Ry.  Co.,  137  P.  943,  91  Kan.  226,  L.  R.  A.  1916F,  949. 

The  tort  statute  of  limitations  has  no  application  to  an  action  on  quasi 
contract  to  recover  money  paid  by  mistake.  Kansas  City  v.  R.  J.  &  W.  M. 
Boyd  Const.  Co.,  120  P.  347,  86  Kan.  213. 

Code  Civ.  Proc.  §  18,  subd.  3,  declares  that  actions  on  liabilities  created  by 
statute  shall  be  brought  within  three  years.  Section  18,  subd.  2,  declares  that 
"an  action  for  an  injury  to  the  rights  of  another,  not  arising  on  contract," 
shall  be  brought  within  two  years.  Held,  that  the  limitation  of  two  years 
applies  to  an  action  brought  by  a  servant  against  his  master  to  recover  £ur 
injuries  caused  by  the  negligence  of  the  master,  or  from  the  negligence  of  a 
fellow  servant.  Atchison,  T.  &  S.  F,  R.  Co.  v.  King,  3  P.  565,  31  Kan.  708. 

An  action  for  trespass  through  the  permanent  obstruction  of  the  channel 
of  a  stream  so  as  to  divert  its  natural  flow  against  the  opposite  bank,  and 

(230) 


Art.  4)  LIMITATION   PERIODS  §    364 

§  364.     Fraud 

A  cause  of  action  for  relief  on  the  ground  of  fraud  is  barred  by 
the  two-year  statute  of  limitations,  if  the  fraud  is  discovered  more 
than  two  years  before  the  action  is  commenced.34 

thereby  destroy  a  portion  of  plaintiff's  land,  held  barred  by  the  two-year 
statute  of  limitations.  Taylor  v.  Newman,  139  P.  369,  91  Kan.  864. 

Where  the  complaint  alleges  the  conversion  of  personalty  in  1902,  the  ac- 
tion therefor  in  1910  is  barred,  though  there  is  a  prayer  for  an  accounting. 
Blackwell  v.  Blackwell,  129  P.  173,  88  Kan.  495. 

Where  property  had  been  seised  on  execution,  interplea,  alleging  ownership 
and  claiming  the  return  thereof,  comes  too  late  after  two  years.  Gardner 
v.  Quick,  54  P.  1034,  8  Kan.  App.  559. 

34  Losch  v.  Pickett,  12  P.  822,  36  Kan.  216 ;  Sherman  v.  Havens,  119  P.  370, 
86  Kan.  99. 

A  suit  for  fraud  in  exchange  of  property  not  commenced  within  two  years 
after  cause  of  action  accrued  was  barred  by  the  statute  of  limitations.  Cor- 
nelssen  v.  Harman,  103  Kan.  624,  176  P.  141. 

An  action  for  relief  on  the  ground  of  fraud,  not  brought  for  eight  years 
after  discovery  thereof,  was  barred  by  the  two-year  statute  of  limitations. 
Fix  v.  Rose,  64  Okl.  113,  166  P.  145. 

An  action  by  a  trustee  in  bankruptcy  against  bankrupt  and  insurance  com- 
panies for  fraudulent  conspiracy  in  compromising  and  paying  insurance  pro- 
ceeds pending  bankruptcy  is  barred  after  two  years.  Tripp  v.  English,  59 
Okl.  225,  158  P.  912.  A  petition  in  tort  action,  showing  on  its  face  it  was 
filed  more  than  two  years  after  date  of  the  tort,  is  demurrable.  Id. 

Where  on  exchange  of  property  the  deed  to  plaintiff  expressly  provided 
for  assumption  of  mortgage,  in  suit  to  set  aside  mortgage  as  being  placed  on 
property  to  defraud  plaintiff,  he  will  be  deemed  to  have  notice  of  fraud  with- 
in two-year  statute  of  limitations  when  he  accepted  deed ;  there  being  no 
showing  of  illiteracy.  Ostran  v.  Bond  (Okl.)  172  P.  447. 

Kansas  cases. — Any  action  by  one  defrauded  of  money,  in  which  a  recovery 
depends  on  proof  'of  the  fraud,  unless  begun  within  two  years  after  its  dis- 
covery, is  barred  by  Gen.  St.  1915,  §  6907,  subd.  3,  though,  under  subdivision 
2,  limitation  for  action  on  oral  contract,  express  or  implied,  is  three  years. 
Orozem  v.  McNeill,  103  Kan.  429,  175  P.  633,  3  A.  L.  R.  1598. 

Civ.  Code,  §  18,  subd.  3,  providing  that  a  cause  of  action  for  relief  on  the 
ground  of  fraud  shall  not  be  deemed  to  have  accrued  until  the  discovery  of 
the  fraud,  does  not  apply  to  an  action  founded  on  contract.  Judgment  (1903) 
70  P.  933,  modified.  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Atchison  Grain  Co.,  75 
P.  1051,  68  Kan.  585,  1  Ann.  Cas.  639.  An  action  to  recover  for  violation  of 
a  verbal  agreement  in  which  there  was  a  stipulation  against  discrimination 
accrues  within  3  years  from  the  violation  of  the  agreement,  and  an  averment 
that  defendant  concealed  such  discrimination  until  less  than  18  months  be- 
fore the  filing  of  the  petition  shows  no  ground  for  postponing  the  operation 
of  limitations.  Judgment  (1903)  70  P.  933,  modified  on  rehearing.  Id. 

Actions  to  ichich  statute  is  applicable. — Where  a  county  clerk  fraudu- 
lently draws  county  warrants  for  a  sum  in  excess  of  the  amount  allowed  by 
the  board  of  county  commissioners,  the  cause  of  action  against  him  and  his 

(231) 


§  364  LIMITATIONS  (Ch.  7 

bondsmen  does  not  accrue  until  discovery  of  the  fraud.  Allen  v.  State,  51  P. 
572,  6  Kan.  App.  915. 

Where  an  officer  misappropriates  money  intrusted  to  him  and  fraudulently 
conceals  his  default,  limitations  will  not  begin  to  run  until  the  discovery  of 
the  fraud  and  of  the  breach  of  the  conditions  of  his  bond.  McMullen  v.  Win- 
field  Building  &  Loan  Ass'n,  67  P.  892,  64  Kan.  298,  56  L..R.  A.  924,  91  Am. 
St.  Rep.  236. 

When  property  is  fraudulently  sold,  by  the  administrator  of  a  partnership, 
to  pay  debts  of  the  partnership,  for  which  purpose  he  has  in  his  hands  other 
partnership  assets,  which  he  conceals  and  applies  to  his  own  use,  such  ad- 
ministrator is  chargeable,  with  the  rents  and  profits  of  such  property  from 
the  date  of  sale ;  such  recovery  not  being  barred  by  the  three-years  statute 
of  limitations,  concerning  implied  contracts,  since  the  cause  of  action  dates 
from  the  discovery  of  the  fraud.  Branner  v.  Nichols,  59  P.  633,  61  Kan.  356. 

An  action  to  establish  a  partnership  and  plaintiff's  interest  therein,  and 
for  an  accounting,  held  not  an  action  for  relief  on  the  ground  of  fraud,  and 
"hence  not  governed  by  the  statute  of  limitations  relating  to  actions  for  fraud. 
Holmes  v.  Culver,  133  P.  164,  89  Kan.  698. 

An  attorney  employed  to  collect  a  claim  without  authority  from  his  client 
employed  another  attorney  to  assist  him ;  and  they  jointly  collected  part  of 
it,  and  failed  to  account.  The  attorney  originally  employed  notified  the  client 
that  he  had  made  the  collection,  and  promised  to  pay  over  the  money,  and 
afterwards  informed  her  of  his  employment  of  the  other  attorney  to  assist 
him.  Held,  that  an  action  to  recover  the  money  collected,  brought  against 
the  attorney  not  employed  by  plaintiff,  four  years  after  her  attorney  told  her 
of  his  employment,  was  barred  by  limitations.  Eaton  v.  Elliott,  57  P.  243, 
9  Kan.  App.  882. 

When  a  city's  overpayments  to  a  contractor  by  reason  of  fraudulent  meas- 
urements were  made,  a  cause  of  action  against  the  contractor  and  the  surety 
on  his  bond  to  recover  them  back  accrued,  and  an  action  against  the  surety 
was  barred  in  five  years  therefrom,  irrespective  of  when  the  fraud  Avas  dis- 
covered. City  of  Topeka  v.  Ritchie,  102  Kan.  384,  170  P.  1003. 

An  action  for  damages  from  inducing  plaintiff  to  become  a  user  of  morphine 
in  ignorance  of  its  nature  held  not  an  action  for  relief  "on  the  ground  of 
fraud"  within  the  statute  of  limitations.  Gillmore  v.  Gillmore,  137  P.  958,  91 
Kan.  293,  295,  51  L.  R.  A.  (N.  S.)  838,  judgment  modified  on  rehearing  139  P. 
386,  91  Kan.  707,  51  L.  R.  A.  (N.  S.)  834. 

In  an  action  by  a  wife  against  her  husband  and  his  brother  to  cancel  and 
set  aside  a  tax  deed,  plaintiff  alleged  that  her  husband,  for  valuable  consid- 
eration, agreed  to  pay  all  taxes  levied  against  her  land ;  that  he  failed  to 
pay  the  taxes  and  permitted  the  land  to  be  sold  at  tax  sale ;  that  he  caused 
certificates  of  sale  and  tax  deeds  to  be  issued  and  executed  to  such  brother, 
who  was  a  party  to  the  wrong.  Held,  that  the  action  was  for  relief  upon  the 
ground  of  fraud.  Doyle  v.  Doyle,  7  P.  615,  33  Kan.  721. 

In  an  action  recovery  against  a  garnishee  depended  upon  whether  certain 
conveyances  made  to  him  were  fraudulent,  and  this  issue  was  developed  by 
the  evidence  on  the  trial,  and  was  the  theory  on  which  the  garnishment  pro- 
ceedings were  conducted.  Held,  that  such  proceedings  were  "an  action  for 
relief  on  the  ground  of  fraud.'1  Nelson  v.  Stull,  6£  P.  617,  65  Kan.  585,  judg- 
ment affirmed  70  P.  590,  65  Kan.  585. 

In  an  action  by  a  wife  against  her  husband  and  his  brother  to  cancel  and 


Art.  4)  LIMITATION  PERIODS  §  364 

set  aside  a  tax  deed,  plaintiff  alleged  that  her  husband,  for  valuable  consid- 
eration, agreed  to  pay  all  taxes  levied  against  her  land,  that  he  failed  to  pay 
the  taxes  and  permitted  the  land  to  be  sold  at  tax  sale,  and  that  he  caused 
certificates  of  sale  and  tax  deeds  to  be  issued  and  executed  to  such  brother, 
who  was  a  party  to  the  wrong.  Held,  that  the  action  for  relief  on  the 
ground  of  fraud.  Doyle  v.  Doyle,  7  P.  615,  33  Kan.  721. 

An  action  brought  by  the  buyer  of  corporate  stock  to  open  up  an  account 
stated  as  to  the  amount  of  outstanding  corporate  liability  assumed  by  him 
and  to  remake  the  account  according  to  the  agreement  held  not  an  action  for 
relief  on  the  ground  of  fraud,  though  he  alleged  that  the  account  was  not 
only  incorrect,  but  was  fraudulently  made  so  by  the  seller.  McCue  v.  Hope, 
154  P.  216,  97  Kan.  85,  11  A.  L.  R.  581. 

An  action  to  charge  defendant  for  the  amount  of  a  debt  owing  plaintiff 
from  one  who  gave  defendant  a  chattel  mortgage  to  secure  debt,  on  property 
of  more  value  than  his  debt,  is  an  action  for  fraud,  and  barred  by  limitations 
of  two  years.  Houghton  v.  Axelsson,  67  P.  825,  64  Kan.  274. 

Misconduct  of  an  arbitrator  in  acting  from  motives  of  bias  or  partiality, 
or  from  a  misconception  of  duty  in  making  the  award,  arising  from  the  belief 
that  he  was  the  representative  of  one  of  the  parties  thereto,  does  not  consti- 
tute fraud,  so  as  to  cause  a  right  of  action  or  defense  based  on  the  illegality 
of  the  award  to  be  barred  by  the  two-year  statute  of  limitations.  Downey 
v.  Atchison,  T.  &  S.  F.  R.  Co.,  57  P.  101,  60  Kan.  499. 

An  action  to  impose  a  trust  on  the  entire  assets  of  one  who  has  wrongfully 
converted  public  funds  must  be  brought  within  two  years,  under  Civ.  Code, 
§  18,  subd.  3,  providing  that  an  action  for  relief  on  the  ground  of  fraud  must 
be  commenced  within  that  time.  City  of  Clay  Center  v.  Myers,  35  P.  25,  52 
Kan.  363. 

—  Deeds. — An  action  to  set  aside  a  deed  for  fraud  is  ordinarily  barred  in 
two  years  after  the  filing  of  such  deed  for  record  in  the  office  of  the  register 
of  deeds  of  the  county  where  the  land  is  situated.  Rogers  v.  Richards,  74  P. 
255,  67  Kan.  706. 

Where  defendant  induced  plaintiff  to  sign  a  deed  of  land  to  him,  she  sup- 
posing it  to  be  a  power  of  attorney,  an  action  for  relief  is  not  barred  until 
two  years  after  the  discovery  of  the  deception.  Kahn  v.  Klaus,  67  P.  542, 
64  Kan.  24. 

In  an  action  to  set  aside  a  deed  on  the  ground  of  fraud,  the  cause  of  action 
will  not  be  deemed  to  have  accrued  at  the  time  of  the  delivery  of  the  deed, 
but  at  the  time  of  the  discovery  of  the  fraud  by  means  of  which  the  grantor 
was  induced  to  execute  and  deliver  the  same.  Brown  v.  Brown,  64  P.  599, 
62  Kan.  666. 

-  Defenses.— The  statute  of  limitations  barring  an  action  for  relief  on 
the  ground  of  fraud  in  two  years  after  the  discovery  of  the  fraud  bars  only 
the  "right  of  action,"  and  does  not  prevent  one  who  has  been  injured  by  the 
fraud  from  pleading  such  fraud  as  a  shield  to  protect  himself  from  the  ac- 
tion of  another.  Thomas  v.  Rauer,  64  P.  80,  62  Kan.  568. 

Under  Civ.  Code,  §  IS,  subd.  3,  barring  an  action  on  the  ground  of  fraud 
in  two  years  after  accrual  of  the  cause  of  action,  and  declaring  that  the 
cause  of  action  shall  not  be  deemed  to  have  accrued  until  after  the  discovery 
of  the  fraud,  a  defense  in  which  it  is  sought  to  avoid  a  written  agreement, 
and  reform  the  same,  on  the  ground  of  fraud,  is  barred  after  two  years  from. 

(233) 


§  364  LIMITATIONS  (Ch  7 

discovery  of  the  fraud.  McCormick  Harvesting  Mach.  Co.  v.  Hayes  (Kan. 
App.)  49  P.  632. 

Limitations  run  only  from  the  time  of  discovery,  or  from  time  when  the 
defrauded  party,  with  ordinary  diligence,  might  have  discovered  the  fraud. 
Farmers'  State  Bank  of  Ada  v.  Keen  (Old.)  167  P.  207. 

The  statute  of  limitations  does  not  bar  an  action  for  fraud  until  two  years 
after  the  fraud  has  been  discovered.  Mohr  v.  Sands,  44  Okl.  330,  133  P.  238. 
Plaintiff  residing  in  New  York  was  not  charged  with  notice  of  fraud  prac- 
ticed on  her  by  her  attorney  in  Nebraska,  so  as  to  start  the  statute  of  limita- 
tions because  the  records  of  the  Nebraska  courts  would  show  fraud,  where 
the  attorney  was  acting  for  her  in  the  matter  concerning  which  the  record 
was  made,  and  she  had  no  means  of  ascertaining  what  the  records  would 
show,  except  from  her  attorney.  Id. 

In  action  for  relief  on  ground  of  fraud,  whether  for  rescission  or  damages, 
limitations  do  not  commence  to  run  until  discovery  of  fraud.  Gillies  v.  Lins- 
cott,  157  P.  423,  98  Kan.  78,  judgment  affirmed  on  rehearing  160  P.  213,  99 
Kan.  215. 

The  statute  of  limitations  does  not  commence  to  run  against  an  action  for 
false  representations  of  authority  to  contract  until  discovery  of  the  fraud. 
Pierson  v.  Holdridge,  140  P.  1032,  92  Kan.  365. 

Where  a  casualty  policy  different  from  that  applied  for  has  been  fraudu- 
lently .issued,  reformation  is  not  barred  until  two  3rears  after  the  fraud  is  dis- 
covered. Hammond  v.  Western  Casualty  &  Guaranty  Ins.  Co.,  165  P.  291,  100 
Kan.  582. 

In  an  action  to  set  aside  an  order  approving  an  administrator's  final  ac- 
count based  on  a  release  procured  through  fraud,  limitations  do  not  run  until 
discovery  of  the  fraud.  Pickens  v.  Campbell,  159  P.  21,  98  Kan.  518. 

Diligence — Constructive  notice. — To  start  limitations  running  against  an  ac- 
tion for  fraud,  the  fraud  is  deemed  to  be  discovered  whenever  it  is  discover- 
able by  the  exercise  of  diligence  reasonably  to  be  expected  of  one  in  the  posi- 
tion of  the  person  defrauded.  Duphorne  v.  Moore,  107  P.  791,  82  Kan.  159. 

Fraud  is  deemed  to  be  discovered,  within  the  statute  of  limitations,  when, 
in  the  exercise  of  reasonable  diligence,  it  could  have  been  discovered :  and 
where  a  creditor  knew  of  the  execution  of  a  deed,  which  he  supposed  named 
his  debtor  as  grantee,  reasonable  diligence  would  have  required  an  examina- 
tion of  the  record,  which  would  have  disclosed  the  fact  that  it  was  executed 
to  the  debtor's  wife.  Donaldson  v.  Jacobitz,  72  P.  846,  67  Kan.  244.  An  ac- 
tion to  set  aside  a  deed  to  a  debtor's  wife  as  fraudulent,  and  to  subject  the 
property  to  the  payment  of  the  debt,  is  barred  in  two  years  from  the  time, 
where  the  creditor  knew  of  the  execution  of  the  deed  when  it  was  made,  but 
supposed  it  named  his  debtor  as  grantee.  Id. 

In  action  for  relief  on  ground  of  fraud,  constructive  notice  is  sufficient  to 
start  the  running  of  the  statute  of  limitations,  within  the  meaning  of  the 
Code  provision  that  such  an  action  is  deemed  to  have  accrued  upon  the  "dis- 
covery of  the  fraud."  Davis  v.  Heynes,  105  Kan.  75,  181  P.  566. 

In  an  action  for  damages  from  fraudulent  representations  as  to  irrigation 
rights,  held,  that  the  plaintiff  had  shown  ordinary  diligence  to  discover  the 
fraud,  and  that  the  action  was  not  barred,  because  not  brought  within  two 
years  from  the  time  the  fraud,  if  any,  was  discovered.  Mateer  v.  Great  West- 
ern Land  Co.,  137  P.  786,  91  Kan.  349. 

Where,  in  an  action  against  defendants  on  the  ground  of  fraud  of  the  ad- 

(234) 


Art.  4)  LIMITATION   PERIODS  §    364 

This  statutory  limitation  only  applies  where  the  party  against 
whom  the  bar  is  interposed  is  required  to  allege  fraud  in  pleading 
his  cause  of  action,  or  to  prove  fraud  to  entitle  himself  to  relief.35 
It  has  no  application  to  actions  for  relief  on  the  ground  of  duress 
by  threats.36 

The  phrase  "until  discovery  of  the  fraud,"  does  not  mean  actual 
notice,  as  constructive  notice  is  sufficient;  and,  where  the  means 
of  discovery  lie  in  public  records  required  by  law  to  be  kept,  they 


ministrator  of  an  estate  on  whose  bond  they  were  sureties,  it  appeared  that 
in  1882  under  an  order  of  the  probate  court  the  land  of  the  decedent  was 
sold,  a  sale  was  confirmed,  and  that  the  administrator  filed  an  account  at  that 
time  crediting  himself  with  a  number  of  .items,  showing  no  balance  in  his 
hands  as  administrator,  and  that  there  were  no  debts  requiring  the  sale  of  the 
land  and  that  the  items  credited  to  the  administrator  were  false,  the  action 
was  barred ;  the  records  of  the  probate  court  involving  the  transactions  com- 
plained of  being  constructive  notice  of  the  alleged  fraud  sufficient  to  set  in  mo- 
tion the  two-year  statute  of  limitations.  Walline  v.  Olson,  113  P.  426,  84  Kan. 
37. 

Where  an  action  for  relief  on  the  ground  of  fraud  is  brought  by  children 
against  their  mother,  as  administratrix  of  her  husband  and  their  guardian, 
eighteen  years  after  the  estate  was  settled,  and  eight  years  after  the  guard- 
ian's account  was  closed,  a  finding  that  the  fraud  was  discovered  by  actual 
examination  of  the  mother's  accounts  within  two  years  from  the  date  of  the 
action  is  not  a  sufficient  finding  to  remove  the  case  from  the  operation  of  limi- 
tations. Black  v.  Black,  68  P.  662,  64  Kan.  689.  Under  Civ.  Code,  §  18,  par. 
3,  limitation  of  two  years,  in  actions  for  relief  against  fraud,  after  "discovery 
of  the  fraud,"  is  not  to  be  determined  by  actual  notice;  and  where  the  means 
of  discovery  lies  in  the  public  records  required  to  be  kept,  and  which  involve 
the  very  transaction  in  hand,  they  are  sufficient  constructive  notice  to  set  the 
statute  in  motion.  Id. 

The  rule  that,  if  an  examination  of  the  public  records  would  reveal  a  fraud, 
the  records  are  constructive  notice  sufficient  to  set  limitations. in  motion,  does 
not  obtain  in  favor  of  a  vendee  who  procured  his  conveyance  by  fraudulent 
representations  as  to  the  state  of  the  record  on  which  the  vendor  relied.  Hut- 
to  v.  Knowlton,  108  P.  825,  82  Kan.  445. 

The  record  of  a  deed  executed  to  defraud  creditors  held  not  to  give  notice 
of  the  fraud.  Underwood  v.  Fosha,  152  P.  638,  96  Kan.  549,  Ann.  Gas.  1917A, 
265. 

35  Logan  v.  Brown,  95  P.  441,  20  Okl.  334,  20  L.  B.  A.  (N.  S.)  298. 

The  limitation  of  the  time  within  which  an  action  for  relief  on  the  ground 
of  fraud  must  be  commenced  applies  only  when  the  party  against  whom  the 
bar  is  interposed  is  required  to  allege  fraud  in  pleading  his  cause  of  action, 
or  to  prove  fraud,  to  entitle  him  to  relief.  Brown  v.  Cloud  County  Bank,  42 
P.  593,  2  Kan.  App.  352. 

se  Eureka  Bank  v.  Bay,  135  P.  584,  90  Kan.  506. 

(235) 


§  364  LIMITATIONS  (Ch.  7 

are  sufficient  to  set  the  statute  in  motion.37  But  one  standing  in  a 
relation  of  trust  is  bound  to  disclose  the  real  facts,  and  a  defrauded 
party  is  not  charged  with  constructive  discovery  of  the  fraud  be- 
cause the  facts  are  a  matter  of  public  record.38 

Where  a  statutory  quitclaim  deed,  instead  of  a  warranty  deed, 
was  fraudulently  given,  the  grantee,  who  read  and  accepted  it,  was 
charged  with  notice  of  its  character,  and  limitations  began  to  run 
from  the  date  of  acceptance.39 

A  record  of  a  deed  is  not  notice  to  the  grantor  of  the  fraudulent 
inclusion  therein  of  land  other  than  that  intended  to  be  conveyed, 
so  as  to  start  running  of  limitations.40 

Where  the  evidence,  in  an  action  by  trustees  for  relief  on  ac- 
count of  fraud,  fails  to  show  that  such  fraud  was  not  known  to 
one  of  the  plaintiffs,  or  to  their*  predecessors,  more  than  two  years 
prior  to  the  commencement  of  the  action,  plaintiffs  cannot  re- 
cover.41 

In  an  action  by  a  creditor  for  relief  on  the  ground  of  fraud  of  his 
debtor,  it  is  necessary  to  establish  ignorance  of  the  fraud  until  the 
time  within  the  period  limited  for  the  commencement  of  an  action 
to  remove  the  bar  of  limitations.42 

The  statute  of  limitations  does  not  begin  to  run  against  an  agent, 
for  misappropriation,  until  discovery  by  the  principal  of  the  defal- 
cation.43 

The  limitation  of  time  within  which  an  action  may  be  brought 
in  form  in  ejectment,  but  in  substance  for  relief  on  the  ground  of 
fraud,  is  two  years  after  the  discovery  of  the  fraud,  subject  to  being 
tolled  as  in  other  cases,  and  not  the  fifteen-year  limitation.44 

An  action  for  balance  due  from  a  guardian  to  his  ward  when  the 

37  Board  of  Com'rs  of  Garfleld  County  v.  Renshaw,  99  P.  638,  23  Okl.  56, 
22  L.  R.  A.  (N.  S.)  207. 

38  Farmers'  State  Bank  of  Ada  v.  Keen  (Okl.)  167  P.  207. 

Registration  of  deed  procured  from  ignorant  and  illiterate  grantor  by  false 
pretense  that  it  was  a  rental  contract,  did  not  constitute  constructive  notice 
of  fraud  sufficient  to  set  limitations  in  motion  against  grantor.  Ford  v.  Perry 
(Okl.)  168  P.  221. 

so  Jones  v.  Woodward,  50  Okl.  704,  151  P.  586. 

40  Webb  v.  Logan,  48  Okl.  354,  150  P.  116. 

41  Manley  v.  Robertson,  51  P.  795,  6  Kan.  App.  921. 

42  Fuller  v.  Homer,  77  P.  88,  69  Kan.  467. 

43  Guernsey  v.  Davis,  73  P.  101,  67  Kan.  378. 
4'4  New  v.  Smith,  119  P.  380,  86  Kan.  1. 

(236) 


Art.  4)  LIMITATION  PERIODS  §§  364-365 

latter  reached  the  age  of  majority  is  not  an  action  for  relief  for 
fraud,  within  the  two-year  statute  of  limitations  though  the  petition 
contains  allegations  that  certain  charges  against  the  ward  in  the 
annual  accounts  are  erroneous.45 

An  action  by  a  trustee  in  bankruptcy  to  set  aside  conveyances 
made  by  a  bankrupt  with  intent  to  defraud  creditors  is  an  action 
for  relief  on  the  ground  of  fraud.46 

Where  one  who  is  entitled  to  an  accounting  against  another,  and 
who  has  the  express  promise  of  such  other  to  account,  fails  to  insti- 
tute his  action  within  the  statute  of  limitations,  he  cannot  take  his 
case  out  of  such  statute  by  alleging  a  fraudulent  conspiracy  be- 
tween his  adversary  and  a  third  person  to  refuse  such  accounting.47 

The  fact  that  defendant,  after  defrauding  plaintiff  out  of  his  prop- 
erty, absconded  from  the  state,  and  that  plaintiff  was  unable  to 
discover  her  whereabouts,  is  not-  equivalent  to  a  failure  by  plaintiff 
to  discover  the  fraud.48 

§  365.     Foreign  judgment — Bonds,  etc. 

"Fourth.  Within  one  year:  An  action  on  a  foreign  judgment; 
an  action  for  libel,  slander,  assault,  battery,  malicious  prosecu- 
tion, or  false  imprisonment;  an  action  upon  a  statute  for  penalty 
or  forfeiture,  except  where  the  statute  imposing  it  prescribes  a  dif- 
ferent limitation.49 


45  Hawk  v.  Sayler,  83  Kan.  775,  112  P.  602. 

46  Harrod  v.  Farrar,  74  P.  624,  68  Kan.  153. 

47  Rizer  v.  Board  of  Com'rs  of  Geary  County,  48  P.  568,  58  Kan.  114. 

48  Myers  v.  Center,  27  P.  978,  47  Kan.  324. 

49  An  action  on  a  foreign  judgment  must  be  brought  within  one  year  from 
the  time  the  right  of  action  accrues.    Bank  of  Stockham  v.  Weins,  71  P.  1073, 
12  Okl.  502. 

Illustrations — Kansas  cases. — A  mortgage  was  executed  and  recorded,  and 
afterwards  paid  and  satisfied.  On  several  occasions,  the  mortgagor  demand- 
ed that  the  mortgagee  should  enter  satisfaction  of  record,  but  the  mortgagee 
failed,  and  after  more  than  one  year  from  the  time  of  making  the  first  de- 
mand, but  within  less  than  one  year  after  making  the  last  demand,  the  mort- 
gagor sued  to  recover  the  penalty  provided  for  by  section  8  of  the  act  relat- 
ing to  mortgages.  Held,  that  plaintiff's  cause  of  action  was  given  by  and  his 
action  founded  on  "a  statute  for  a  penalty,"  and,  his  action  not  having  been 
brought  within  one  year  after  his  cause  of  action  accrued,  it  was  barred 
before  his  action  was  commenced.  Joyce  v.  Means,  20  P.  853,  41  Kan.  234. 

A  proceeding  to  amerce  a  sheriff  under  is  governed  by  Code  Civ.  Proc.  § 
18,  subd.  4,  prescribing  the  time  within  which  actions  on  a  statute  for  a  pen- 

(237) 


§    365  LIMITATIONS  (Cll.  7 

"Fifth.  An  action  upon  the  official  bond  or  undertaking  of  an 
executor,  administrator,  guardian,  sheriff  or  any  other  officer,  or 
upon  the  bond  or  undertaking  given  in  attachment,  injunction, 
arrest  or  in  any  case  whatever  required  by  the  statute  can  only 
be  brought  within  five  years  after  the  cause  of  action  shall  have 
accrued.50 

alty  or  forfeiture  must  be  begun.  Fuller  v."  Wells,  Fargo  &  Co.,  22  P.  561,  42 
Kan.  551. 

A  petition  against  a  railroad  company  alleged  that  defendant  had  charged 
plaintiff  for  the  transportation  of  merchandise  a  greater  rate  than  it  charged 
other  persons,  and  asked  judgment  for  three  times  the  amount  of  the  over- 
charge. A  demurrer  having  been  sustained,  an  amended  petition  was  filed, 
leaving  out  the  demand  for  triple  damages,  and  asking  to  recover  actual  dam- 
ages only.  Held  that,  under  the  rule  that  when  the  language  of  a  petition  is 
of  doubtful  import,  and  it  Is  challenged  before  trial  by  a  demurrer,  the  plead- 
ing must  be  construed  against  the  pl&ader,  on  the  ground  that  he  should  make 
his  meaning  clear,  the  petition  must  be  construed  as  having  been  based,  not 
on  the  common-law  liability  of  the  carrier  for  discrimination,  but  oil  Gen.  St. 
1889,  pars.  1333,  1342,  making  it  unlawful  for  a  railroad  company  to  charge 
any  person  for  transportation  of  property  a  greater  sum  than  it  shall  charge 
any  other  person,  and  making  it  liable  to  the  person  so  overcharged  in  three 
times  the  amount  of  damages ;  and  the  action  is  therefore  barred  in  one  year, 
under  Code,  §  18,  subd.  4,  requiring  an  action  upon  a  statute  for  a  penalty  to 
be  brought  within  one  year.  Beadle  v.  Kansas  City,  Ft.  S.  &  M.  R.  Co.,  29  P. 
696,  48  Kan.  379. 

The  action  for  a  penalty  for  failure  to  discharge  of  record  a  mortgage  that 
has  been  paid  is  barred  in  one  year,  where  a  demand  for  such  discharge  is  not 
made  within  that  time  after  payment.  Wey  v.  Schofield,  36  P.  333,  53  Kan. 
248. 

An  action  under  Gen.  St.  1889,  par.  406,  by  a  depositor  against  an  officer  for 
receiving  deposits,  knowing  the  bank  to  be  insolvent,  is  an  action  for  a  pen- 
alty, barred  in  one  year.  Ashley  v.  Frame,  45  P.  927,  4  Kan.  App.  265,  judg- 
ment reversed  Frame  v.  Ashley,  53  P.  474,  59  Kan.  477. 

The  reciprocal  demurrage  act  (Laws  1905,  c.  345),  provides  that  when  a  ship- 
per applies  for  cars,  the  carrier  must  furnish  them  within  a  specified  time, 
subject  to  a  forfeiture  of  $1  per  day  for  each  car  failed  to  be  furnished.  Held, 
in  an  action  under  the  act,  that  the  one-year  statute  of  limitations  applies. 
Udall  Milling  Co.  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  108  P.  137,  82  Kan.  256. 

An  action  under  Gen.  St.  1889,  c.  25,  §  39,  against  a  county  commissioner  for 
the  Recovery  of  unauthorized  fees,  is  an  action  on  a  statute  for  a  penalty, 
within  Gen.  St.  1889,  c.  80,  §  18,  subd.  4,  limiting  the  bringing  of  such  actions 
to  one  year  from  the  accrual  of  the  cause  of  action.  Roe  y.  Board  of  Com'rs 
of  Elk  County,  40  P.  1082,  1  Kan.  App.  219. 

An  action  to  recover  for  injuries  sustained  by  a  negligent  shooting  is  barred 
within  one  year.  Byrum  v.  Edwards,  71  P.  250,  66  Kan.  96. 

so  The  time  within  which  an  action  may  be  brought  against  a  guarantor  for 
breach  of  a  guaranty  contained  in  a  paving  contract  with  a  city  for  the  con- 
tractor's failure  to  pay  for  material  and  labor  is  fixed  by  Rev.  Laws  1'910,  § 

(238) 


Art.  4)  LIMITATION  PERIODS  §§  365-367 

"Sixth.  An  action  for  relief,  not  hereinbefore  provided  for,  can 
only  be  brought  within  five  years  after  the  cause  of  action  shall 
have  accrued."  51 

This  provision  applies  to  an  action  brought  in  district  court  to 
determine  the  title  to  a  fund  in  county  court,52  to  the  time  within 
which  the  purchaser  at  a  tax  sale  may  maintain  an  action  against 
the  county  clerk  to  compel  the  issuance  of  a  second  tax  deed,  the 
deed  first  issued  being  invalid,53  and  to  an  action  against  a  railroad 
company  to  recover  compensation  for  all  damages  sustained  by 
reason  of  the  permanent  taking  and  appropriation  of  the  right  of 
way,54  but  not  to  a  proceeding  in  probate  to  sell  real  estate  to  pay 
debts.55 

§  366.    Action  for  recovery  of  estate  sold  by  guardian 

"No  action  for  the  recovery  of  any  estate,  sold  by  a  guardian, 
can  be  maintained  by  the  ward>  or  by  any  person  claiming  under 
him,  unless  it  is  commenced  within  three  years  next  after  the  ter- 
mination of  the  guardianship,  or  when  a  legal  disability  to  sue  ex- 
ists by  reason  of  minority  or  otherwise,  at  the  time  when  the  cause 
of  action  accrues,  within  three  years  next  after  the  removal  there- 
of." 56 

§  367.     Liens 

"A  lien  is  extinguished  by  the  mere  lapse  of  the  time  within 
which,  under  the  provisions  of  civil  procedure,  an  action  can  be 
brought  upon  the  principal  obligation."  57 


4657,  limiting  actions  on  bonds,  not  by  section  3882.  United  States  Fidelity  & 
Guaranty  Co.  v.  Star  Brick  Co.,  54  Okl.  103,  153  P.  1122. 

Bond  to  state  for  use  of  lienors  whose  liens  accrued  under  Laws  Kan.  1909. 
c.  183,  §  1,  in  connection  with  contract  for  erection  of  public  building,  held  a 
bond  to  supersede  mechanics'  liens,  to  which  the  general  statute  of  limita- 
tion applies,  and  not  the  special  statute.  (Gen.  St.  Kan.  1915,  §  7570  [Code 
Civ.  Proc.  Kan.  §  662]).  Capital  Iron  Works  Co.  v.  Chicago  Bonding  &  Surety 
Co.,  171  P.  612,  102  Kan.  699. 

si  Rev.  Laws  1910,  §  4657. 

52  Yockey  v.  Yockey,  148  P.  665,  95  Kan.  519. 

53  Young  v.  Gibson,  105  P.  3,  80  Kan.  264,  81  Kan.  185. 

54  Atchison,  T.  &  S.  F.  R.  Co.  v.  Lauterback,  54  P.  11,  8  Kan.  App.  15. 

55  Thomas  v.  Williams,  80  Kan.  632,  103  P.  772,  25  L.  R.  A.  (N.  S.)  1304. 
se  Rev.  Laws  1910,  §  6583. 

57  Rev.  Laws  1910,  §  3844. 

(239) 


§§  368-372  LIMITATIONS  (Ch.  7 

/ 

§  368.     Liens  against  railroads 

Liens  of  mechanics,  builders,  artisans,  workmen,  laborers  and 
other  persons  against  railroads,  "shall  not  be  effectual  unless  suit 
shall  be  brought  upon  the  claim  within  one  year  after  it  accrued."  58 

§  369.     Actions  against  notaries 

"No  suit  shall  be  instituted  against  any  such  notary  or  his  se- 
curities more  than  three  years  after  the  cause  of  action  accrues."  59 

§  370.    Rejected  claim 

.  "When  a  claim  is  rejected,  either  by  the  executor  or  adminis- 
trator, or  the  judge  of  the  county  court,  the  holder  must  bring  suit 
in  the  proper  court,  according  to  its  amount,  against  the  executor 
or  administrator,  within  three  months  after  the  date  of  its  rejec- 
tion, if  it  be  then  due,  or  within  two  months  after  it  becomes  due, 
otherwise  the  claim  is  forever  barred."  60 

§  371.     Vacancy  in  administration 

"The  time  during  which  there  shall  be  a  vacancy  in  the  admin- 
istration, must  not  be  included  in  any  limitation  herein  pre- 
scribed," 61 

§  372.     Action  against  sureties  on  bond 

"No  action  can  be  maintained  against  the  sureties  on  any  bond 
given  by  a  guardian,  unless  it  be  commenced  within  three  years 
from  the  discharge  or  removal  of  the  guardian;  but  if  at  the  time 
of  such  discharge  the  person  entitled  to  bring  such  action  is  un- 
der any  legal  disability  to  sue,  the  action  may  be  commenced  at 
any  time  within  three  years  after  such  disability  is  removed."  62 

ss  Rev.  Laws  1910,  §  3869. 

so  Rev.  Laws  1910,  §  4249. 

Cause  of  action  against  notary  public  and  sureties  on  his  bond  for  making 
false  certificate  of  acknowledgment  on  June  8,  1909,  accrued  thea,  and  when 
not  brought  until  July  31,  1915,  was  barred  by  three-year  limitations.  Okla- 
homa Farm  Mortgage  Co.  v.  Jordan  (Okl.)  168  P.  1029. 

eo  Rev.  Laws  1910,  §  6344. 

61  Rev.  Laws  1910,  §  6347. 

62  Rev.  Laws  1910,  §  6582. 

(240) 


Art.  4)  LIMITATION  PERIODS  §§  373-374 

§  373.     Actions  for  wrongful  death 

An  action  for  wrongful  death  must  be  commenced  within  two 
years.03 

§  374.     Assessments — Suits  to  set  aside 

"No  suit  shall  be  sustained  to  set  aside  any  such  assessment,  or 
to  enjoin  the  mayor  and  council  from  making  any  such  improve- 
ment, or  levying  or  collecting  any  such  assessment,  or  installment 
thereof,  or  interest  or  penalty  thereon,  or  issuing  such  bonds,  or 
providing  for  their  payment,"  as  authorized  in  chapter  10,  article 
12,  providing  for  street  improvements,  "or  contesting  the  validity 
thereof  on  any  ground,  or  for  any  reason  other  than  for  the  failure 
of  the  city  council  to  adopt  and  publish  the  preliminary  resolution 
provided  for  in  cases  requiring  such  resolution  and  its  publication, 
and  to  give  the  notice  of  the  hearing  on  the  return  of  the  apprais- 
ers, unless  such  suit  shall  be  commenced  not  more  than  sixty  days 
after  the  passage  of  the  ordinance  making  such  final  assessment."  64 

"No  suit  shall  be  sustained  to  set  aside  any  assessment  or  cer- 
tificate issued  in  pursuance  of  any  assessment  or  to  enjoin  the  city 
council  or  town  board  from  making  any  improvement,  unless 
brought  within  sixty  days  after  the  passage  of  the  ordinance  mak- 
ing such  assessment."  65 

ss  Rev.  Laws  1910,  §  5281;  Rodman  v.  Missouri  Pac.  Ry.  Co.,  70  P.  642,  65 
Kan.  645,  59  L.  R.  A.  704 ;  Harwood  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  171  P.  354, 
101  Kan.  215. 

64  Rev.  Laws  1910,  c.  10,  §  644. 

GS  Rev.  Laws  1910,  §  471;  Warner-Quinlan  Asphalt  Co.  v.  Smith  (Okl.)  173 
P.  516. 

Suit  cannot  be  maintained  to  set  aside  assessment  for  street  improvement, 
because  amount  includes  an  overpayment  to  contractor  if  suit  is  commenced 
more  than  60  days  after  passage  of  ordinance  making  final  assessment.  Cross- 
lin v.  Warner-Quinlan  Asphalt  Co.  (Okl.)  177  P.  376. 

Though  mayor  and  council  adopt  resolution  for  paving  improvement  during 
the  15  days  from  last  publication  of  preliminary  resolution  of  necessity  with- 
in which  protest  may  be  filed,  action  to  enjoin  collection  of  special  assess- 
ments, begun  more  than  60  days  after  final  assessment  ordinance,  was  barred 
by  special  statute  of  limitations  (Rev.  Laws  1910,  §  644).  Bickel  v.  Warner- 
Quinlan  Asphalt  Co.  (Okl.)  174  P.  537.  Where  mayor  and  council  granted 
petition  for  paving  purporting  to  be  signed  by  requisite  number  of  owners, 
and  gave  legal  notice  of  hearing  on  appraisers'  return,  without  protest  as  to 
sufficiency  of  petition,  an  action,  begun  more  than  60  days  after  final  assess- 
ment ordinance,  to  enjoin  collection  because  petition  was  not  signed  by  requi- 
site number  of  owners,  was  barred  by  special  statute  of  limitations  (Rev.  Laws 
1910,  §  644).  Id. 

HON.PL.&  PRAC.— 16  (241) 


§§  374-376  LIMITATIONS  (Ch.  7 

This  statute  is  not  applicable  as  a  bar  to  an  action  to  enjoin  col- 
lection of  assessment  when  proceedings  on  which  it  is  passed  are 
void.68 

This  statute  does  not  deprive  persons  of  property  without  due 
process  of  law,67  or  impair  the  obligation  of  contracts.68 

s 
§  375.     Demand — Tender 

Where  a  demand  is  required  to  perfect  a  cause  of  action,  it  must 
be  made  within  a  reasonable  time,  and  the  statute  of  limitations 
cannot  be  extended  by  delay  in  making  demand.69 

Where  a  contract  binds  the  purchaser  on  demand  to  set  apart 
and  convey  lots  as  part  of  the  price,  the  statute  of  limitations  does 
not  begin  to  run  until  a  demand  and  failure  to  comply  therewith.70 

Where  property  is  received  by  the  provisional  government  of 
a  city,  and  appropriated  to  its  own  use,  and  later  is  appropriated 
to  the  use  of  the  incorporated  city  taking  its  place,  the  statute  of 
limitations  does  not  run,  as  against  the  owner  of  the  property,  until 
after  a  demand  has  been  made  therefor.71 

An  action  for  specific  performance  of  a  contract  to  convey  realty 
not  fixing  time  for  performance  accrues  when  the  purchaser  within 
reasonable  time  tenders  performance,  and  the  vendor  refuses  per- 
formance, and  the  statute  of  limitations  runs  from  that  time.72 

§  376.     Actions  for  usurious  interest 

The  action  must  be  brought  within  two  years  after  the  maturity 
of  the  usurious  contract,  when  brought  under  the  statute  providing 
in  part  that  the  taking,  receiving,  reserving  or  charging  a  rate  of 
interest  greater  than  is  allowed  by  law  "shall  be  deemed  a  for- 
feiture of  twice  the  amount  of  interest  which  the  note,  bill  or  other 

66  Southern  Surety  Co.  v.  Jay  (Okl.)  178  P.  95;  City  of  Muskogee  v.  Nichol- 
son (Okl.)'l71  P.  1102;    Grier  v.  Kramer,  62  Okl.  151,  162  P.  490. 

A  provision  under  the  city  charter  prescribing  the  time  within  which  ac- 
tion must  be  brought  to  secure  relief  against  an  assessment  for  street  improve- 
.ments  held  not  to  apply  in  the  case  of  a  void  assessment  made  against  a  lot. 
Flanagan  v.  City  of  Tulsa,  55  Okl.  638,  155  P.  542. 

67  City  of  Chickasha  v.  O'Brien,  58  Okl.  46,  159  P.  282. 
es  City  of  Chickasha  v.  O'Brien,  58  Okl.  46,  159  P.  282. 
69purcell  Bank  &  Trust  Co.  of  Purcell  v.  Byars  (Okl.)  167  P.  216. 
TO  Kee  v.  Satterfield,  46  Okl.  660,  149  P.  243. 

71  City  of  Guthrie  v.  T.  W.  Harvey  Lumber  Co.,  60  P.  247,  9  Okl.  464. 

72  Skidmore  v.  Leavitt  (Okl.)  175  P.  503. 

(242) 


' 
Art.  4)  *  LIMITATION  PERIODS  .        §§  376-378 

evidence  of  debt  carries  with  it,  or  which  has  been  agreed  to  be  paid 
thereon.  In  case  a  greater  rate  of  interest  has  been  paid,  the  person 
by  whom  it  has  been  paid,  or  his  legal  representatives,  may  recover 
from  the  person,  firm  or  corporation  taking  or  receiving  the  same 
in  an  action  in  the  nature  of  an  action  of  debt  twice  the  amount  of 
the  entire  interest  paid."  78 

Under  this  statute  an  action  to  recover  the  forfeiture  prescribed 
for  usury  must  be  brought  within  two  years  after  the  maturity  of 
the  usurious  contract,  or  from  maturity  of  last  renewal  note  given 
on  the  contract.74 

If  usurious  interest  has  been  paid,  it  can  only  be  recovered  in 
separate  action  brought  therefor  within  two  years.76 

§  377.     Tax  deed 

The  statute  providing  that  an  action  to  avoid  a  tax  deed  shall  be 
commenced  within  one  year  after  the  recording  of  the  deed  does 
not  apply  to  an  action  to  avoid  a  void  tax  deed.76 

§  378.     Nonresident  alien  landowners 

"All  nonresident  aliens  who  may  hereinafter  acquire  real  estate 
in  Oklahoma  by  devise,  descent. or  by  purchase,  where  such  pur- 
chase is  made  under  any  legal  proceeding  foreclosing  liens  in  favor 
of  such  alien,  may  hold  the  same  for  five  years  from  the  date  of  so 
acquiring  such  title."  7T 

73  Rev.  Laws  1910,  §  1005,  amended  by  Sess.  Laws  1916,  p.  24,  §  1. 

74  First  State  Bank  v.  Pool  (Okl.)  167  P.  760. 

75  Daniels  v.  Bunch  (Okl.)  172  P.  1086;  First  State  Bank  v.  Pool  (Okl.)  167 
P.  760;   Ardmore  State  Bank  v.  Lee,  61  Okl.  169,  159  P.  903. 

Const,  art.  14,  §  3,  and  Rev.  Laws  1910,  §§  1005,  4660,  intended  that  limita- 
tion prescribed  within  which  action  to  recover  twice  the  usurious  interest 
paid  must  be  brought  be  subject  to  same  tolling  provisions  of  statute  applying 
to  other  actions  for  debt.  Bean  v.  Rumrill  (Okl.)  172  P.  452. 

76  Union  Savings  Ass'n  v.  Cummins  (Okl.)  177  P.  901 ;  Rev.  Laws  1910,  §  7419. 

77  Rev.  Laws  1910,  §  6648. 

(243) 


§  379  LIMITATIONS  (Ch.  7 

ARTICLE  V 

SUSPENSION  AND  TOLLING  OF  STATUTE 

Sections 

379.  Suspension  of  statute  in  general. 

380.  Disability. 

381.  Infancy. 

382.  Person  of  unsound  mind. 

383.  Suspension  of  statute  by  death. 

384.  Absence  or  flight. 

385.  Nonresidence. 

386.  Concealment. 

387.  Of  person. 

388.  Return. 

389.  Fraud  or  fault. 

390.  Ignorance,  mistake,  and  duress. 

391.  Revivor. 

§  379.     Suspension  of  statute  in  general 

It  will  not  suspend  the  running  of  the  statute  that  the  subject 
of  an  action  is  held  in  custodia  legis  in  another  action  to  which 
defendant  is  neither  a  party  nor  in  privity  with  a  party  and  over 
which  he  has  no  control,78  or  that  an  appeal  is  pending  from  the 
final  order  and  judgment,  of  the  district  court  to  the  Supreme 
Court,  in  the  absence  of  a  supersedeas,79  or  that  a  composition  is 
effected,80  or  that  the  defendant  ;s  declared  a  bankrupt,  where 
the  plaintiff  participated  in  the  dividends.81 

Where  legal  proceedings  restrain  one  party  from  exercising  a 
legal  remedy  against  another,  the  running  of  the  limitations  is 
postponed  or  suspended  during  such  restraint.82 

78  Hawkins  v.  Brown,  97  P.  479,  78  Kan.  284. 

79  Bank  of  Stockham  v.  Weins,  12  Okl.  502,  71  P.  1073. 

80  Dobson  v.  Noyes,  18  P.  697,  39  Kan.  471. 

81  Simpson  v.  Tootle,  Wheeler  &  Hotter  Mercantile  Co.,  141  P.  448,  42  Okl. 
275,  L.  R.  A.  1915B,  1221. 

82  City  of  Hutchinson  v.  Hutchinson,  141  P.  589, '92  Kan.  518,  52  L.  R.  A. 
(N.  S.)   1165. 

The  running  of  the  statute  of  limitations  against  a  -judgment  against  a 
township  will  be  suspended  during  the  operation  of  a  supersedeas  bond  in 
favor  of  the  township  staying  the  issuance  of  execution  thereon.  Ware  v. 
Pleasant  Grove  Tp.,  59  P.  1089,  9  Kan.  App.  700. 

An  order  at  chambers  on  a  motion  of  a  mortgagee  discharging  an  attach- 
ment obtained  by  a  creditor  of  a  chattel  mortgagor,  and  to  reverse  which  pro- 

(244) 


Art.  5)  SUSPENSION   AND   TOLLING   OF   STATUTE  §    379 

The  statute  does  not  run  during  the  pendency  of  an  action,83  if 
the  causes  of  action  are  identical.84 


ceeding  in  error  was  brought,  did  not  prevent  the  mortgagee  from  suing  the 
creditor  for  conversion  so  as  to  suspend  the  running  of  limitations  as  against 
such  action.  McDonald  v.  Symns  Grocer  Co.,  67  P.  1111,  64  Kan.  f£29. 

In  order  that  the  pendency  of  other  proceedings  may  toll  the  statute  of  limi- 
tations the  proceedings  must  be  such  as  to  prevent  the  enforcement  of  the 
remedy  by  action.  Harrison  v.  Scott,  95  P.  1045,  77  Kan.  637.  Limitations 
will  run  on  a  cause  of  action  in  favor  of  a  stockholder  of  an  insolvent  cor- 
poration for  contribution  from  his  co-stockholders  based  on  a  claim  in  his 
favor  against  the  corporation,  notwithstanding  an  action  against  him  on  his 
double  liability  in  which  he  seeks  to  set  off  the  same  cause  of  action.  Td. 

A  right  of  action  accrues  on  plaintiff's  undertaking  in  replevin  when  he 
fails  to  comply  with  the  judgment  rendered  against  him,  and  the  statute  be- 
gins to  run  from  the  rendition  of  the  judgment  even  though  plaintiff  prosecutes 
a  proceeding  in  error  without  giving  a  supersedeas  bond  to  reverse  the  judg- 
ment. Delay  v.  Yost,  53  P.  482,  59  Kan.  496. 

83  Where,  before  action  on  a  judgment  in  favor  of  a  corporation  was  barred 
by  limitation,  a  receiver  was  appointed  and  brought  an  action  on  the  judg- 
ment, which  remained  pending  until  his  discharge,  the  statute  of  limitations 
does  not  run  during  the  pendency  of  the  action.    Chicago  &  A.  Bridge  Co.  v. 
Fowler,  39  P.  727,  55  Kan.  17. 

Where  proceedings  to  enforce  stockholders'  liability  and  obtain  executions 
against  them  are  brought  before  the  judgment  against  the  corporation  be- 
comes dormant,  and  are  diligently  prosecuted,  no  statute  of  limitations  will 
run  against  the  judgment  creditor  pending  the  litigation,  and  his  right  to 
proceed  to  the  end  will  not  be  barred  because  more  than  six  years  have  elapsed 
since  the  last  execution  on  the  judgment  was  issued.  Steffins  v.  Gurney,  59 
P.  725,  61  Kan.  292. 

Where  a  corporation  which  has  purchased  the  business  and  assumed  the 
liabilities  of  an  individual  is  impleaded  with  the  individual  in  an  action  to 
recover  an  indebtedness .  growing  out  of  the  business  and  while  such  action, 
which  finally  results  in  a  judgment  against  the  corporation,  is  pending,  the 
corporation  resells  to  another  corporation,  which  in  turn  assumes  the  liabili- 
ties of  the  former,  the  statute  of  limitations  does  not  begin  to  run  in  favor  of 
stockholders  of  the  latter  corporation  so  long  as  the  creditor  is  prosecuting 
with  reasonable  diligence  actions  to  establish  the  liability  of  the  successive 
purchasers.  Walterscheid  v.  Bowdish,  96  P.  56,  77  Kan.  665. 

Where  a  suit  by  a  claimant  to  mortgaged  premises  brought  in  1891  to  quiet 
title  and  cancel  the  mortgage  was  removed  to  the  United  States  court,  and 
in  1897  remanded  to  the  state  court,  and  neglected  for  ten  years,  and  where, 
in  1908,  a  grantee  of  the  mortgagor  procured  judgment  quieting  title  against 
plaintiff,  but  no  judgment  was  taken  against  the  mortgagee  answering,  held, 
that  the  right  of  the  assignee  of  the  mortgage  to  foreclose  by  cross-petition 
in  1910  was  not  barred  by  the  five-year  statute  of  limitations.  City  of  Hutchin- 
son  v.  Hutchinson,  141  P.  589,  92  Kan.  518,  52  L.  R.  A.  (N.  S.)  1165. 

84  An  action  for  compensation  for  property  destroyed  by  fire  negligently  set 
by  railroad  is  not  brought  on  same  cause  of  action  as  one  to  recover  amount 
agreed  to  be  paid  in  compromise  and  pendency  of  action  on  such  agreement 


§§  379-380  LIMITATIONS  (Ch.7 

The  absence  from  the  state  of  the  principal  do.es  not  suspend  the 
running  of  the  statute  of  limitations  in  favor  of  the  sureties  on  an 
administrator's  bond ;  they  are  severally  liable,  and  are  severally 
entitled  to  the  protection  of  the  statute.85 

§  380.     Disability 

"Any  person  entitled  to  bring  an  action  for  the  recovery  of  real 
property,  who  may  be  under  any  legal  disability  when  the  cause 
of  action  accrues,  may  bring  his  action  within  two  years  after 
the  disability  is  removed."  86 

Where  disability  to  sue  exists  when  the  right  of  action  accrues,, 
the  statute  of  limitations  does  not  begin  to  run  during  continuance 
of  the  disability.87  But  generally,  the  statute  having  once  attach- 

does  not  suspend  statute  of  limitations  as  against  the  action  on  the  tort. 
Thompson  v.  Missouri,  K.  &  T.  Ry.  Co.,  171  P.  629,  102  Kan.  668. 

85  Davis  v.  Clark,  49  P.  665,  58  Kan.  454. 

86  Rev.  Laws  1910,  §  4656. 

Where  the  purchaser  of  land  at  a  void  guardian's  sale  went  into  possession 
and  he  and  those  claiming  under  him  remained  continuously  in  possession 
thereafter  an  action  by  the  minor  to  recover  such  land  was  barred,  when  not 
brought  within  five  years  after  the  recording  of  the  guardian's  deed,  or  within 
two  years  after  removal  of  plaintiffs  disability.  Dodson  v.  Middleton,  3S 
Okl.  763,  135  P.  368. 

Plaintiff  sued  within  two  years  after  coming  of  age,  on  a  single  cause  of 
action  for  ejectment,  partition,  and  the  recovery  of  rents  and  profits.  A 
share  of  the  land  descended  to  plaintiff  when  he  was  a  minor.  Defendants, 
tenants  in  common,  had  long  held  exclusive  possession  under  a  claim  of  ab- 
solute ownership,  and  they  and  their  ancestor  had  so  held  adversely  to  plain- 
tiff for  more  than  fifteen  years  before  suit.  Held,  that  as  the  principal  pur- 
pose of  the  action  was  to  determine  the  title  held  by  the  adverse  claimants, 
and  the  other  grounds  of  relief  asked  are  incidental,  it  falls  within  the  stat- 
ute, which  permits  such  action  within  two  years  after  the  disability  of  infancy 
is  removed.  Delashmutt  v.  Parrent,  18  P.  712,  39  Kan.  548. 

The  statute  provides  that  an  action  for  the  recovery  of  real  estate,  not 
thereinbefore  provided  for,  shall  be  brought  within  fifteen  years.  The  statute 
provides  that  any  person  entitled  to  bring  an  action  for  the  recovery  of  real 
property,  who  may  be  under  any  legal  disability  when  the  cause  of  action  ac- 
crues, may  bring  his  action  within  two  years  after  the  disability  is  removed. 
Held,  that  an  action  by  a  minor  to  recover  land  sold  fifteen  years  before  by 
her  guardian  is  barred,  if  the  minor  reached  her  majority  two  years  before 
bringing  the  action.  Howbert  v.  Heyle,  27  P.  116,  47  Kan.  58. 

A  right  of  action  in  ejectment  for  the  recovery  of  land  sold  by  an  adminis- 
trator, brought  by  an  heir  of  a  deceased  person,  is  saved  to  a  minor  who  may 
sue  within  two  years  after  the  disability  of  infancy  has  been  removed.  Thomp- 
son v.  Burge,  57  P.  110,  60  Kan.  549,  72  Am.  St.  Rep.  369. 

s7  Title  Guaranty  &  Surety  Co.  v.  Cowen  (Okl.)  177  P.  563. 

(240) 


Art.  5)  SUSPENSION  AND  TOLLING  OF  STATUTE       §§  380-381 

ed,  the  period  will  continue  to  run  without  suspension  by  any  sub- 
sequent disability,  unless  the  statute  so  provides.88 

An  adjudication  in  bankruptcy  under  the  Bankruptcy  Act  of 
1898,  as  amended  (U.  S.  Comp.  St.  §§  9585-9656),  does  not  put 
the  creditor  under  a  "legal  disability,"  as  to  an  action  in  a  state 
court  on  a  provable  claim.80 

The  phrase  "under  legal  disability"  includes  a  person  imprison- 
ed.90 

"If  a  person  entitled  to  bring  an  action  other  than  for  the  recov- 
ery of  real  property,  except  for  a  penalty  or  forfeiture,  be,  at  the 
time  the  cause  of  action  accrued,  under  any  legal  disability,  every 
such  person  shall  be  entitled  to  bring  such  action  within  one  year 
after  such  disability  shall  be  removed."  91 

§  381.     Infancy 

Under  statutes  of  limitations,  excepting  persons  under  disabili- 
ties, but  not  specifically  excepting  infants,  they  are  within  the 
saving  clause,  though  an  infant  has  a  guardian  who  might  main- 
tain an  action  in  his  own  name,  where  the  right  of  action  is  in  the 
infant.92 

A  cause  of  action  in  favor  of  an  infant,  for  personal  injuries  sus- 
tained, may  be  brought  at  any  time  during  infancy,  and  will  in  no 
event  be  barred  by  the  two-year  limitation  until  one  year  after  the 
disability  of  infancy  has  been  removed.93 

Where  an  action  is  commenced  by  a  Creek  freedman  allottee 
while  still  a  minor,  as  defined  by  Act  Cong.  May  27,  1908,  against 
a  former  guardian  and  surety  for  proceeds  of  sale  of  allotted  lands, 
limitations  have  not  been  set  in  motion  to  bar  the  relief  sought.8* 

Where  a  tenant  in  common  with  four  others  was  a  minor,  and 
was  ousted  of  his  possession  by  the  grantee  of  the  four,  who  took 

88  Overstreet  v.  Wichita  Falls  &  N.  W.  R.  Co.  (Okl.)  175  P.  354. 

89  Simpson  v.  Tootle,  Wheeler  &  Motter  Mercantile  Co.,  141  P.  448,  42  Okl. 
275,  L.  B.  A.  1915B,  1221. 

90  State  v.  Calhoun,  32  P.  38,  50  Kan.  523,  18  L.  R.  A.  838,  34  Am.  St.  Rep. 
141. 

91  Rev.  Laws  1910,  §  4658. 

92  Hinton  v.  Trout    (Okl.)    172  P.  450;    Title  Guaranty  &  Surety  Co.  of 
Scranton,  Pa.,  v.  Burton  (Okl.)  170  P.  1170. 

93  Missouri  Pac.  Ry.  Co.  v.  Cooper,  45  P.  587,  57  Kan.  185. 

94  Brewer  v.  Dodson,  60  Okl.  81,  159  P.  329;   Brewer  v.  Ferryman,  62  Okl. 
176,  162  P.  791. 

(247) 


§§  381-383  LIMITATIONS  (Ch.  7 

f 

all  the  rents  and  profits  for  several  years,  and,  as  soon  as  he  ar- 
rived at  the  age  of  maturity,  commenced  an  action  for  partition 
and  for  rents  and  profits,  such  action  is  not  barred  by  the  statute 
of  limitations.95 

.  Limitations  do  not  begin  to  run  against  an  action  to  set  aside 
a  void  conveyance  of  Indian  minor  allottee,  executed  after  May 
27,  1908,  until  the  minor  has  attained  majority,  as  shown  by  en- 
rollment records  of  the  Commissioner  to  thq  Five  Civilized 
Tribes.96 

§  382.     Person  of  unsound  mind 

Limitations  will  not  run  in  favor  of  a  person  claiming  under  a 
deed  made  by  one  mentally  unsound  and  under  the  undue  influ- 
ence of  the  grantee.97 

An  insane  person  is  under  disability,  within  the  meaning  of  the 
statute  of  limitations,  though  the  question  of  his  sanity  has  never 
been  adjudicated.98 

§  383.     Suspension  of  statute  by  death 

The  running  of  limitations  in  favor  of  an  adverse  possessor  of 
land  is  not  suspended  by  the  death  of  the  opposing  claimant  and 
descent  of  the  cause  of  action  to  minor  heirs.99 

As  against  heirs  of  a  grantor  of  unsound  mind,  who  so  contin- 
ues until  his  death,  limitations  do  not  begin  to  run  until  such 
death.1 

The  death  of  a  debtor  ordinarily  suspends  the  running  of  the 
statute  until  the  appointment  of  an  administrator,2  but  the  stat- 
ute will  run  on  a  demand  against  the  estate  after  a  reasonable  time 
has  elapsed  after  death,  though  no  executor  or  administrator  has 
been  appointed,3  and  the  death  of  a  debtor  does  not  amount  to  an 
indefinite  suspension  of  the  statute.* 

90  Scantlin  v.  Allison,  4  P,  618,  32  Kan.  376. 
oe  Bell  v.  Fitzpatrick,  53  Okl.  574,  157  P.  334. 

87  Howard  v.  Carter,  80  P.  61,  71  Kan.  85;  Jenkins  v.  Jenkins,  146  P.  414, 
94  Kan.  263. 

98  Lantis  v.  Davidson,  56  P.  745,  60  Kan.  389. 
»»  Campbell  v.  Dick  (Okl.)  157  P.  1062. 

1  Jenkins  v.  Jenkins,  146  P.  414,  94  Kan.  263. 

2  Nelson  v.  Herkel,  2  P.  110.  30  Kan.  456. 

3  Black  v.  Elliott,  65  P.  215,  63  Kan.  211,  88  Am.  St.  Rep.  239. 

4  The  maker  of  a  note  secured  by  a  mortgage  removed  from  the  state  after 

(248) 


Art.  5)  SUSPENSION  AND   TOLLING  OF   STATUTE          §§    383-384 

A  cause  of  action  for  the  foreclosure  of  a  mortgage  does  not  ac- 
crue on  the  death  of  the  mortgagor  and  the  allowance  by  the  pro- 
bate court  of  the  note  secured  by  the  mortgage,  as  a  demand 
against  the  estate,  without  regard  to  the  maturity  of  the  mortgage 
debt,  and  it  does  not  set  limitations  running  aga'inst  such  action.5 

Under  Federal  Employers'  Liability  Act,  §  6  (U.  S.  Comp.  St. 
•§  8662),  limiting  an  action  to  two  years  from  accrual  of  the  cause, 
a  personal  representative  appointed  more  than  two  years  from  the 
death  of  the  employe  cannot  maintain  an  action.6 

§  384.     Absence  or  flight 

"If,  when  a  cause  of  action  accrues  against  a  person,  he  be  out 
of  the  state,  or  has  absconded  or  concealed  himself,  the  period  lim- 
ited for  the  commencement  of  the  action  shall  not  begin  to  run 
until  he  comes  into  the  state,  or  while  he  is  so  absconded  or  con- 
cealed ;  and  if,  after  the  cause  of  action  accrues,  he  depart  from  the 
state,  or  abscond,  or  conceal  himself,  the  time  of  his  absence  or 
concealment  shall  not  be  computed  as  any  part  of  the  period  with- 
in which  the  action  must  be  brought."  7 

This  statute  applies  to  an  action  to  recover  twice  the  amount  of 
interest  paid  on  an  usurious  contract.8  It  applies  to  actions  con- 

the  maturity  of  the  note,  and  was  absent  until  his  death.  No  administration 
was  ever  had  on  his  estate,  nor  were  any  steps  taken  to  enforce  the  collec- 
tion of  the  secured  debt  until  about  10  years  after  his  death,  when  an  action 
to  foreclose  the  mortgage  was  begun.  Held,  that  the  action  was  barred. 
Culp  v.  Gulp,  32  P.  1118,  51  Kan.  341,  21  L.  R.  A.  550. 

Under  Gen.  St.  1889,  par.  2796,  a  creditor  of  a  decedent  having  a  claim 
which  he  wishes  to  establish  against  the  estate,  may,  if  the  widow  or  next  of 
kin  refuse  to  take  out  letters  of  administration,  obtain  letters  for  himself  or 
some  other  person,  after  50  days  from  the  death  of  decedent ;  and  he  cannot, 
without  any  good  cause  or  reason  therefor,  defer  making  such  application 
until  the  statute  o^  limitations  has  run,  and  then  claim  that  all  of  the  time 
from  the  death  of  the  debtor  to  the  appointment  of  the  administrator  the 
statute  of  limitations  is  suspended  on  account  of  the  nonappointment  of  such 
administrator.  Bauserman  v.  Charlott,  26  P.  1051,  46  Kan.  480. 

5  Linn  v.  Ziegler,  75  P.  489,  68  Kan.  528. 

0  Giersth  v.  Atchison,  T.  &  S.  F.  Ry.  Go.  (Kan.)  171  P.  591. 

'  Rev.  Laws  1910,  §  4660. 

When  a  cause  of  action  arises,  limitations  in  the  country  where  the  obligor 
resides  immediately  begin  to  run,  and,  if  in  another  country  than  the  state 
of  Kansas,  an  action  on  a  contract  is  not  barred  by  limitations  in  Kansas,  un- 
less the  bar  of  limitations  has  fallen  in  such  other  country.  Hays  Land  &  In- 
vestment Co.  v.  Bassett,  116  P.  475,  85  Kan.  48. 

8  Bean  v.  Rumrill  (Okl.)  172  P.  453. 

(249) 


§  384  LIMITATIONS  (Ch.  T 

cerning  real  property  as  well  as  to  personal  actions,9  provided  the 
action  is  not  strictly  in  rem  and  no  personal  service  is  required.10 
The  fact  of  personal  presence  in  the  state,  and  not  of  domicile,. 
controls.11 

9  Chicago,  K.  &  N.  Ry.  Co.  v.  Cook,  22  P.  988,  43  Kan.  83. 

The  statute  of  limitations  does  not  run  on  a  cause  of  action  for  the  re- 
covery of  real  property,  while  the  person  who  claims  title  thereto  is  absent 
from  the  state.  Corby  v.  Moran,  49  P.  82,  58  Kan.  278 ;  Ard  v.  Wilson,  54  P. 
511,  8  Kan.  App.  471,  judgment  affirmed  56  P.  80,  60  Kan.  85fT. 

Code  Civ.  Proc.  §  15  (Gen.  St.  1897),  excluding  the  period  of  a  defendant's 
absence  from  the  state  from  the  time  of  commencing  actions  against  him,  ap- 
plies to  a  defendant  in  ejectment  claiming  title  by  adverse  possession,  though 
he  had  possession  through  a  tenant  during  such  absence.  Ard  v.  Wilson,  56 
P.  80,  60  Kan.  857,  affirming  judgment  54  P.  511,  8  Kan.  App.  471. 

The  running  of  limitations,  as  against  grantee  assuming  a  mortgaged  debt, 
may  be  suspended  by  the  absence  of  the  grantee  from  the  state.  Hendricks  v. 
Brooks,  101  P.  622,  80  Kan.  1,  133  Am.  St.  Rep.  186. 

Limitation  does  not  run  against  a  mortgage  foreclosure  suit  against  a 
nonresident,  though  the  plaintiff  is  in  possession  of  the  mortgaged  premises 
as  grantee  of  the  mortgagor.  Smith  v.  Perkins,  63  P.  297,  10  Kan.  App.  577. 
Where  the  statute  of  limitations  is  pleaded  as  a  defense  to  a  mortgage  fore- 
closure suit,  and  the  court  finds  that  the  defendant  left  the  state  within  two 
years  after  the  execution  of  the  mortgage,  and  remained  a  nonresident  there- 
after, it  is  not  error  to  refuse  to  make  finding  as  to  when  the  first  default  oc- 
curred, since  the  cause  of  action  did  not  mature  until  the  plaintiff  declared 
the  debt  due,  and  the  defendant's  nonresidence  prevented  the  running  of  limi- 
tations. Id. 

Where,  in  an  action  for  the  recovery  of  land,  plaintiff  claims  under  a  tax 
deed,  and  contends  that  the  irregularities  in  the  proceedings  are  cured  by 
the  running  of  the  statute  of  limitations  after  the  recording  of  the  deed,  de- 
fendant may  show  that  plaintiff,  since  the  recording  of  the  deed,  has  been  ab- 
sent from  the  state,  and  therefore  cannot  invoke  the  protection  of  the  stat- 
ute. Case  v.  Frazier,  3  P.  497,  31  Kan.  689. 

10  Absence  from  the  state  on  the  part  of  a  tax  deed  holder  will  not  prevent 
the  tax  law  from  so  operating  as  to  bar  any  suit  or  proceeding  brought  against 
the  tax  deed  holder,  or  his  heirs  or  assigns,  for  the  recovery  of  the  property,  or 
to  defeat  or  avoid  the  tax  deed,  if  such  suit  or  proceeding  is  not  commenced 
within  five  years  from  the  time  of  the  recording  of  the  tax  deed.     Beebe  v. 
Doster,  14  P.  150,  36  Kan.  666. 

The  absence  from  the  state  of  the  owner  of  real  estate  upon  which  there 
is  a  mortgage,  but  lor  which  he  is  not  personally  liable,  will  not  prevent  the 
statute  of  limitations  from  running  against  the  mortgage  lien.  Ho,gaboom  v. 
Flower,  72  P.  547,  67  Kan.  41. 

11  Investment  Securities  Co.  v.  Bergthold,  58  P.  469,  60  Kan.  813,  following 
Hoggett  v.  Emerson,  8  Kan.  262 ;   Tanselous  v.  McClellan,  57  Okl.  742,  157  P. 
923;    Dixon  v.  Windscheffel,  129  P.  938,  88  Kan.  824;    Miller  v.  Baier,  72  P. 
772,  67  Kan.  292. 

The  residence  out  of  the  state  which  suspended  the  running  of  the  Illinois 
statute  of  limitations  was  the  fixed  abode  entered  into  with  the  intention  to 

C250) 


Art.  5)  SUSPENSION  AND   TOLLING   OF   STATUTE  §    385 

f 

§  385.     Nonresidence 

The  statute  of  limitations  operates  to  bar  all  actions,  except  as 
against  persons  and  corporations  upon  whom  notice  of  the  action 
cannot  be  served  because  of  their  being  out  of  the  state.12  It  does 
not  run  in  favor  of  a  nonresident  until  summons  can  be  served 
within  the  state  and  a  valid  personal  judgment  had,  which  can  be 
enforced  as  provided  by  law.18 

The  statute  does  not  run  in  favor  of  a  nonresident  corporation 
which  neglects  to  comply  with  the  laws  of  the  state  within  which 
it  is  permitted  to  transact  business,  by  reason  of  which  neglect  it 
is  saved  from  service  of  process.14 

If  notice  of  an  action  can  be  served  during  the  whole  of  a  pre- 
scribed period  and  a  personal  judgment  obtained,  which  can  be 
enforced  as  provided  by  law,  then  such  person  or  corporation  is 
not  "out  of  the  state,"  within  the  statute.13 

remain  permanently  at  least  for  a  time  for  business  or  other  purposes.  Fidel- 
ity &  Deposit  Co.  v.  Sheahan,  133  P.  228,  37  Okl.  702,  47  L.  R.  A.  (N.  S.)  309. 
To  constitute  a  "residence  out  of  the  state"  sufficient  to  suspend  the  running 
of  the  Illinois  statute  of  limitations,  it  was  not  necessary  that  there  should  be 
an  actual  change  of  domicile  in  the  strict  legal  sense,  but  it  was  necessary 
that  a  fixed  and  permanent  abode  or  dwelling  place  out  of  that  state  should 
have  been  acquired  at  least  for  the  time  being.  Id. 

12  St.  Louis  &  S.  F.  R.  Co.  v.  Taliaferro  (Okl.)  168  P.  788,  L.  R.  A.  1918B, 
994. 

Though  one  who  assigns  a  mortgage  note  and  guaranties  payment  within 
two  years  of  maturity  can  stand  in  place  of  the  maker,  and,  like  him,  invoke 
the  statute  of  limitations,  it  is  unavailing  where  the  running  of  the  statute 
has  been'  suspended  by  the  continuous  absence  of  the  maker  from  the  state 
from  the  time  of  giving  the  note.  Spink  v.  Newby,  67  P.  437,  64  Kan.  883. 

13  Bean  v.  Rumrill  (Okl.)  172  P.  453. 

Where  a  nonresident  purchases  property  after  statement  for  mechanic's  lien 
has  been  filed  and  her  deed  is  duly  recorded  and  no  personal  liability  can  be 
enforced  against  her,  her  absence  from  state  does  not  extend  time  within 
which  lien  may  be  foreclosed.  Bixeman  v.  Warren  (Okl.)  173  P.  443. 

14  Johnson  &  Larimer  Dry-Goods  Co.  v.  Cornell,  46  P.  860,  4  Okl.  412;    Okla- 
homa Nat.  Bank  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  45  Okl.  707,  146  P.  716;    St 
Louis  &  S.  F.  Ry.  Co.  v.  Keiffer,  48  Okl.  434,  150  P.  1026 ;    Hale  v.  St.  Louis  & 
S.  F.  R.  Co.,  39  Okl.  192,  134  P.  949,  L.  R.  A.  1915C,  544,  Ann.  Cas.  1915D, 
907;    Williams  v.  Metropolitan  St.  Ry.  Co.,  74  P.  600,  68  Kan.  17,  64  L.  R. 
A.  794,  104  Am.  St.  Rep.  377,  1  Ann.  Cas.  6. 

15  St.  Louis  &  S.  F.  R.  Co.  v.  Taliaferro  (Okl.)  168  P.  788,  L.  R.  A.  1918B, 
994. 

In  action  by  city  against  foreign  company,  surety  on  contractor's  bond, 
surety  at  commencement  of  action  held  not  an  absent  corporation  within 
Code  Civ.  Proc.  §  20  (Gen.  St.  1915,  §  6910),  so  as  to  be  precluded  from  urg- 

(251) 


§§  385-386  LIMITATIONS  (Ch.  T 

\ 

The  time  defendant  is  out  of  the  state  after  a  cause  of  action  has 
accrued  against  him  cannot  be  computed  as  part  of  the  period 
within  which  the  action  must  be  brought.16 

Where  a  defendant,  against  whom  a  cause  of  action  for  fraud 
accrues,  is  at  that  time  absent  in  another  state,  limitations  does 
not  begin  to  run  as  to  him  until  his  return  to  this  state.17 

§  386.     Concealment 

A  party  who  wrongfully  conceals  material  facts,  or  the  fact  that 
a  cause  of  action  has  accrued  against  him,  cannot  plead  limita- 
tions.18 

However,  mere  failure  to  disclose  that  a  cause  of  action  exists 
will  not  prevent  the  running  of  limitations.  There  must  be  some 
actual  artifice  to  prevent  knowledge  of  facts,  or  some  affirmative 
act  of  concealment.19 

One  seeking  to  toll  the  statute  of  limitations  by  reason  of  the 
fraudulent  cpncealment  of  the  facts  out  of  which  his  action  arises 
must  exercise  reasonable  diligence.20 

ing  the  statute  of  limitations  as  a  defense.     City  of  Topeka  v.  Ritchie,  102 
Kan.  384,  170  P.  1003. 

An  action  of  ejectment  by  a  tax  deed  holder  out  of  possession  does  not  be- 
come barred  by  the  two-year  statute  of  limitation,  while  occupied  by  tenants, 
agents,  or  employes  of  a  nonresident  owner.  Gibson  v.  Hinchman,  83  P.  981, 
72  Kan.  382. 

16  Ament  v.  Lowenthall,  35  P.  804,  52  Kan.  706. 

17  Sherman  v.  Havens,  86  Kan.  99,  119  P.  370. 

18  Oklahoma  Farm  Mortgage  Co.  v.  Jordan   (Okl.)  168  P.  1029;   Weems  v. 
Melton,  47  Okl.  706,  150  P.  720 ;   Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Atchison  Gram 
Co.,  70  P.  933,  judgment  modified  75  P.  1051,  68  Kan.  585,  1  Ann.  Cas.  639; 
McMullen  v.  Winfield  Building  &  Loan  Ass'n,  67  P.  892,  64  Kan.  298,  56  L.  R. 
A.  924,  91  Am.  St.  Rep.  236;    Zinkeison  v.  Lewis,  66  P.  644,  63  Kan.  590; 
Stinson  v.  Aultman,  Miller  &  Co.,  38  P.  788,  54  Kan.  537 ;    Stewart  v.  Bank  of 
Indian  Territory,  75  P.  1055,  68  Kan.  755 ;    Gano  v.  Martin,  61  P.  460,  10  Kan. 
App.  384. 

The  statute  does  not  begin  to  run  in  favor  of  an  agent,  and  against  his 
principal,  until  the  principal  has  knowledge  of  some  wrong  committed  by  the 
agent  inconsistent  with  his  rights  as  principal.  Perry  v.  Smith,  2  P.  784,  31 
Kan.  423 ;  Same  v.  Wade,  2  P.  787,  31  Kan.  428. 

19  Oklahoma  Farm  Mortgage  Co.  v.  Jordan  (Okl.)   168  P.  1029;    Waugh  v. 
Guthrie  Gas,  Light,  Fuel  &  Improvement  Co.,  131  P.  174,  37  Okl.  239,  L.  R. 
A.  1917B,  1253. 

20  Lewis  v.  Duncan,  71  P.  577,  66  Kan.  306. 

(252) 


Art.  5)  SUSPENSION   AND   TOLLING   OF   STATUTE          §§    387-390 

§  387.     Of  person 

The  provision  that,  when  a  cause  of  action  accrues  against  a 
person  who  has  "absconded  or  concealed"  himself,  the  period  lim- 
ited for  the  commencement  of  the  action  shall  not  begin  to  run 
while  he  is  so  absconded  or  concealed,  does  not  apply  to  a  cause 
of  action  arising  in  another  state  from  which  defendant  absconded 
to  this  state,  where  she  made  no  effort  to  conceal  her  whereabouts 
while  within  the  state.21 

§  388.     Return 

That,  after^a  debtor  has  moved  from  the  state,  limitations  may 
run  in  his  behalf  during  a  temporary  return,  it  is  not  necessary 
that  such  visit  shall  be  made  so  as  to  give  the  creditor  an  oppor- 
tunity to  serve  summons  on  him,  but  he  is  entitled  to  credit  for 
all  the  time  spent  in  the  state  unless  he  conceals  himself.22 

§  389.     Fraud  or  fault 

In  order  to  shorten  the  time  within  which  an  action  must  be 
brought,  defendants  cannot  set  up  their  own  fraud,23  or  fault  es- 
topping them  from  pleading  limitations.24 

§  390.     Ignorance,  mistake,  and  duress 

For  the  purpose  of  determining  the  time  when  limitations  com- 
menced to  run  against  an  action  to  correct  a  mistake  in  a  deed, 
the  record  of  the  deed  does  not  impart  notice  of  the  mistake.25 

21  Myers  v.  Center,  27  P.  978,  47  Kan.  324. 

Defendant  absconded  from  Iowa,  where  the  debt  sued  on  was  contracted, 
and  came  to  Kansas,  where  he  lived  openly.  His  creditor  thorugh  reasonably 
diligent,  had  failed  to  discover  his  whereabouts.  Held,  that  the  word  "con- 
ceal," as  used  in  the  Kansas  statute  of  limitations,  applied  to  acts  of  a  party 
in  Kansas.  Frey  v.  Aultman,  Miller  &  Co.,  2  P.  168,  30  Kan.  181. 

22  Baxter  v.  Krause,  101  P.  467,  79  Kan.  851,  23  L.  R.  A.  (N.  S.)  547. 
Before  a  debtor  who  is  absent  from  the  state  when  a  cause  of  action  accrue?, 

and  who  makes  occasional  visits  to  the  state  during  the  period  of  limitations, 
can  set  up  a  bar  of  the  statute,  the  times  of  his  temporary  presence  in  the  state 
must  aggregate  the  statutory  period.  Gibson  v.  Simmons,  94  P.  1013,  77  Kan. 
461.  Where  a  debtor  is  out  or  the  state  when  a  cause  of  action  accrues  against 
him,  limitations  do  not  begin  to  run  until  he  comes  into  the  state,  and  it  will 
continue  to  run  so  long  as  he  remains  in  the  state ;  but  if,  after  he  comes  into 
the  state,  he  again  departs  from  it,  the  running  of  the  statute  remains  suspend- 
ed during  his  absence.  Id. 

23  People  of  State  of  New  York  v.  Ettenson,  56  P.  749,  60  Kan.  858. 

24  School  Dist,  No.  5  v.  First  Nat.  Bank,  66  P.  630,  63  Kan.  668;    Missouri, 
K.  &  T.  Ry.  Co.  v.  Pratt,  85  P.  141,  73  Kan.  210,  9  Ann.  Gas.  751. 

25  Jackson- Walker  Coal  &  Material  Co.  v.  Miller,  129  P.  1170,  88  Kan.  763. 


§§  390-392  LIMITATIONS  (Ch.  7 

While  the  lapse  of  time  will  bar  equitable  relief  against  a  mis- 
take in  describing  land  conveyed,  limitations  will  not  run  till  the 
discovery  of  the  mistake,  or  the  time  at  which,  by  reasonable  dili- 
gence, it  might  have  been  discovered.26 

Limitations  do  not  commence  to  run  against  an  action  for  re- 
lief on  the  ground  of  duress  by  threats  while  the  mind  of  the  ag- 
grieved party  continues  to  be  dominated  by  the  threats.27 

§  391.     Reviver 

A  mere  order  of  revivor  is  sufficient  to  prevent  the  running  of 
limitations.28 

Where  an  action  is  revived  in  due  time  after  the  death  of  plain- 
tiff, in  the  name  of  his  administrator,  but  the  petition  is  not  amend- 
ed so  as  to  show  the  death  of  plaintiff  and  the  succession  of  the 
administrator  to  his  rights  for  more  than  five  years  thereafter, 
the  statute  of  limitations  does  not  run  during  the  interval  between 
the  revivor  of  the  action  and  the  filing  of  the  amended  petition.29 


ARTICLE  VI 

EXTENSION  AND  WAIVER 

Sections 

392.  Failure  otherwise   than    on   merits. 

393.  Extension. 

394.  Acknowledgment. 

395.  Extension  agreement. 

396.  Part  payment. 

397.  Waiver  of  limitations. 

§  392.     Failure  otherwise  than  on  merits 

"If  any  action  be  commenced  within  due  time,  and  a  judgment 
thereon  for  the  plaintiff  be  reversed,  or  if  the  plaintiff  fail  in  such 
action  otherwise  than  upon  the  merits,  and  the  time  limited  for 

26  Jackson- Walker  Coal  &  Material  Co.  v.  Miller,  129  P.  1170,  88  Kan.  763; 
Duvall  v.  Simpson,  36  P.  330,  53  Kan.  291. 

An  action  filed  in  August,  1907,  to  recover  money  paid  by  mistake  in  1898. 
was  barred  by  limitations,  where  the  mistake  was  discovered  in  December, 
1903.  Nicholson  v.  Nicholson,  146  P.  340,  94  Kan.  153. 

27  Eureka  Bank  v.  Bay,  135  P.  584,  90  Kan.  506. 

28McLain  v.  Parker,  129  P.  1140,  88  Kan.  717,  judgment  affirmed  on  re- 
hearing 131  P.  153,  88  Kan.  873. 

29  Kansas  City,  W.  &  N.  W.  R.  Co.  v.  Menager,  54  P.  1043,  59  Kan.  687. 

(254) 


Aft.  6)  EXTENSION  AND  WAIVER  §    392 

the  same  shall  have  expired,  the  plaintiff,  or  if  he  die,  and  the 
cause  of  action  survive,  his  representatives,  may  commence  a  new 
action  within  one  year  after  the  reversal  or  failure."  30 ' 

This  statute  applies  to  an  action  which  has  failed  otherwise 
than  on  its  merits,  though  the  time  limited  had  not  expired  at  the 
time  of  such  failure.81  *  For  this  statute  to  operate,  a  right  of  ac- 

30  Rev.  Laws  1910,  §  4662. 

Where  a  party  sues  for  relief  on  the  ground  of  fraud  and  on  the  trial,  by 
leave,  dismisses  the  action  without  prejudice,  more  than  two  years  after  his 
right  of  action  accrued,  and  brings  a  second  action  within  one  year  from  the 
dismissal  of  the  first,  the  bar  of  the  statute  is  not  let  in.  Wilson  v.  Wheeler, 
115  P.  1117,  28  Okl.  726. 

Before  the  statute  of  limitations  had  run  upon  notes,  an  action  thereon  was 
begun,  which  was  thereafter,  and  before  trial,  dismissed  without  prejudice. 
During  the  pendency  of  the  action  the  notes  were  transferred  to  another.  An 
action  thereon  was  brought  more  than  five  years  after  maturity,  but  within 
one  year  after  the  dismissal  of  the  former  suit.  Held,  that  the  right  of  ac- 
tion thereon  was  not  barred.  Anthony  Inv.  Co.  v.  Law,  61  P.  745,  62  Kan. 
193 ;  reversing  judgment  58  P.  1116,  9  Kan.  App.  890. 

The  holder  of  a  note  brought  suit  on  it  in  a  county  wherein  one  of  the  mak- 
ers resided  and  served  him.  A  summons  was  also  sent  to  another  county  and 
served  on  another  maker  who  resided  there.  The  holder  believed  in  good  faith 
that  he  had  a  valid  cause  of  action  against  the  local  maker  who  was  not  joined 
for  the  mere  purpose  of  obtaining  jurisdiction  over  the  other  maker.  Pending 
further  proceedings,  the  makers'  attorney  convinced  the  holder  that  the  ac- 
tion against  the  one  residing  in  the  county  wherein  the  note  had  been  sued  was 
barred  by  the  statute  of  limitations,  and  the  action  was  subsequently  dis- 
missed as  to  that  maker.  Thereafter  the  maker  in  the  other  county  moved 
that  the  summons  and  service  on  him  be  set  aside,  which  was  done,  and  the 
entire  proceeding  dismissed.  Held,  that  the  action  was  commenced,  and  that 
the  holder  of  the  note  failed  otherwise  than  on  the  merits.  Parker  v.  Dobson, 
96  P.  472,  78  Kan.  62. 

Where  a  demurrer  to  a  petition  was  sustained  on  the  ground  of  misjoinder 
of  causes,  and  without  other  pleading  a  judgment  was  entered  that  defendant 
was  the  owner  and  entitled  to  the  possession  of  the  property  in  question,  the 
plaintiff,  having  commenced  his  action  in  due  time,  failed  therein  otherwise 
than  on  the  merits.  New  v.  Smith,  119  P.  380,  86  Kan.  1. 

Where  a  plaintiff  recovered  judgment  before  a  justice,  and  again  on  ap- 
peal to  the  district  court,  but  such  judgment  was  reversed  and  the  action  dis- 
missed by  the  supreme  court,  on  the  ground  that  the  amount  involved  was  be- 
yond the  jurisdiction  of  the  justice,  the  action  "failed  otherwise  than  upon  the 
merits."  Ball  v.  Biggam,  49  P.  678,  6  Kan.  App.  42. 

31  Swift  &  Co.  v.  Hoblawetz,  61  P.  969,  10  Kan.  App.  48;   Knox  v.  Henry,  55 
P.  668,  8  Kan.  App.  313. 

Where  an  action  against  a  notary  is  commenced  within  three  years  and  dis- 
missed without  a  hearing  on  the  merits,  a  new  suit  commenced  within  one 
year  on  the  same  cause  is  not  barred.  Clapp  v.  Miller,  56  Okl.  29,  156  P.  210. 

Where  a  person  sues  to  enforce  a  mechanic's  lien  while  under  a  disability 

(255) 


§  392  LIMITATIONS  (Ch.  7 

tion  must  have  existed  when  the  first  suit  was  brought,32  and 
must  have  been  pleaded,33  and  the  action  not  be  for  a  cause  of 
action  which  has  accrued  to  the  plaintiff  subsequent  to  the  causes 
set  forth  in  his  original  action,34  and  summons  must  have  been 
served.35  The  actions  must  be  substantially  the  same.36 

This  statute  applies  only  when  a  party  would  be  otherwise  bar- 
red from  action  by  the  statute  of  limitations  relating  to  the  cause 
of  action.37  It  has  no  application  to  revivor  proceedings;  and 
hence  an  unsuccessful  attempt  to  obtain  an  order  reviving  a  judg- 
ment does  not  operate  to  extend  the  time  within  which  such  an 
order  may  be  made.38 

The  plaintiff  cannot,  in  new  action  brought  within  a  year,  in- 
graft causes  that  are  barred  upon  causes  pleaded  in  the  first  ac- 
tion that  are  not  barred.39 

Where  a  party  sues  for  services  rendered,  and  a  judgment  in 
his  favor  is  subsequently  reversed,  and  the  case  dismissed  with- 
out prejudice,  a  suit  within  one  year  to  recover  for  the  same  serv- 
ices, where  reliance  is  had  solely  on  an  oral  contract,  is  not  such 
a  departure  from  the  first  action,  setting  up  a  contract  partly  oral 
and  partly  in  writing,  as  to  let  in  the  statute  of  limitations.40 


depriving  him  of  his  right  to  sue  because  of  failure  to  pay  a  city  occu- 
pation tax,  and  then  dismisses  the  suit  without  prejudice,  after  which  he  ob- 
tains  a  pardon,  he  may,  within  a  year  after  such  dismissal,  institute  a  new 
suit  on  the  same  claim.  Draper  v.  Miller,  140  P.  890,  92  Kan.  275,  rehearing 
aenied  141  P.  1014,  92  Kan.  695. 

On  the  dismissal  for  want  of  a  previous  demand  of  an  action  brought  to 
recover  the  penalty  prescribed  for  refusal  to  release  a  chattel  mortgage,  a 
second  action,  brought  within  one  year  after  dismissing  the  first,  is  not  barred, 
though  not  brought  within  one  year  after  demand  made.  Hall  v.  Hurd,  19 
P.  802,  40  Kan.  374. 

An  action  to  foreclose  a  mechanic's  lien,  which  was  commenced  within  one 
year  alter  the  dismissal  of  a  prior  action  without  prejudice,  was  not  barred 
by  the  statute,  though  more  than  one  year  had  elapsed  since  the  filing  of  the 
lien.  Hobbs  v.  Spencer,  31  P.  702,  49  Kan.  769. 

32  Smith  v.  Bourbon  County  Com'rs,  23  P.  642,  43  Kan.  619. 

33  Becker  v.  Atehison,  T.  &  S.  F.  Ry.  Co.,  78  P.  408,  70  Kan.  193. 

34  Hatchell  v.  Hebeisen,  82  P.  826,  16  Okl.  223. 

35  O'Neil  v.  Eppler,  162  P.  311,  99  Kan.  493. 

36  McGlinchy  v.  Bowles,  75  P.  123,  68  Kan.  190. 

37  English  v.  T.  H.  Rogers  Lumber  Co.  (Okl.)  173  P.  1046. 
88  Berkley  v.  Tootle,  64  P.  6zO,  62  Kan.  701. 

80  Brice-Nash  v.  Hutchinson  Interurban  Ry.  Co.,  102  Kan.  36,  169  P.  189. 
40  Myers  v.  First  Presbyterian  Church  of  Perry,  69  P.  874,  11  Okl.  544. 

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Art.  6)  EXTENSION  AND  WAIVEE  §§  392-394 

Where  the  new  action  is  dismissed  more  than  one  year  after 
the  first  dismissal,  there  is  no  authority  for  the  bringing  of  an- 
other new  action.41 

Where  in  an  action  it  was  determined  that  plaintiff  could  not 
maintain  the  same,  because  of  an  oral  agreement  not  to  sue  until 
other  litigation  was  terminated,  in  an  action  after  the  termina- 
tion of  such  other  litigation  defendants  could  not  plead  that  limita- 
tions had  barred  the  action ;  the  decision  in  the  first  case  suspend- 
ing limitations  until  the  action  was  determined.42 

§  393.     Extension 

"In  any  case  founded  on  contract,  when  any  part  of  the  prin- 
cipal or  interest  shall  have  been  paid,  or  an  acknowledgment  of 
an  existing  liability,  debt  or  claim,  or  any  promise  to  pay  the 
same  shall  have  been  made,  an  action  may  be  brought  in  such  case 
within  the  period  prescribed  for  the  same,  after  such  payment, 
acknowledgment  or  promise;  but  such  acknowledgment  or  prom- 
ise must  be  in  writing,  signed  by  the  party  to  be  charged  there- 
by." 43 

§  394.     Acknowledgment 

An  acknowledgment,  to  bar  the  statute  of  limitations,  must  be 
unequivocal  and  without  qualification,  and  a  direct  admission  of 
a  present  existing  liability.44  It  must  itself  be  unqualified  and 

41  Denton  v.  City  of  Atchison,  90  P.  764,  76  Kan.  89. 

42  Bendy  v.  Russell,  114  P.  239,  84  Kan.  377. 

43  Rev.  Laws  1910,  §  4663. 

A  written  acknowledgment  of  a  balance  due  on  a  mortgage  will  extend  the 
time  within  which  the  action  might  be  brought  for  three  years  after  the  date 
of  such  acknowledgment.  Cleveland  Paper  Co.  v.  Mauk,  54  P.  1035,  8  Kan. 
App.  562. 

44  Durban  v.  Knowles,  71  P.  829,  66  Kan.  397. 

Sufficient  acknoicledgment. — The  payee  of  a  note  who  has  assigned  it  as  col- 
lateral security  has  such  an  interest  therein  that  a  written  acknowledgment 
made  to  him  by  the  debtor  will  toll  limitations.  Girard  Trust  Co.  v.  Owen,  112 
P.  619,  83  Kan.  692,  33  L.  R.  A.  (N.  S.)  262. 

Where  the  grantee  accepts  a  deed,  and  by  a  contract  not  set  forth  in  the 
deed  agrees  to  pay  the  grantor's  debt  secured  by  a  mortgage  on  the  land,  ne 
is  liable  in  an  action  by  the  mortgagee,  though  a  recovery  on  the  mortgage 
note  would  be  barred  by  limitations  but  for  such  an  acknowledgment  of  the 
debt  by  the  mortgagor  as  tolled  the  statute  as  to  him  if  such  acknowledgment 
was  made  before  the  conveyance.  Disney  v.  Healy,  85  P.  287,  73  Kan.  326. 

A  statement  to  a  cashier  of  a  bank  holding  a  note  for  collection,  at  the  time 
payment  was  made  by  the  person  making  such  statement,  that  he  is  liable 

HON. Pi,. &  PKAC.— 17  (257) 


§  394  LIMITATIONS  (Ch.  7 

for  one-half  of  the  note  and  interest,  though  he  is  neither  the  maker  nor  in- 
dorser  of  the  note,  is  sufficient  to  toll  the  statute  of  limitations  as  to  him. 
Miller  v.  McDowell,  77  P.  101,  69  Kan.  453. 

•  A  postal  card  sent  through  the  United  States  mail  by  the  defendant,  and 
directed  to  plaintiff,  which  read  as  follows:  "I  will  turn  you  over  Farmer's 
notes  for  the  note  you  hold  against  me,  the  Frys'  note.  Let  me  hear  from  you" 
— was  an  acknowledgment  of  an  existing  liability,  debt,  or  claim,  and  the 
time  for  complete  operation  of  the  statute  was  extended  for  five  years  after 
that  time.  Pracht  v.  McNee,  18  P.  925,  40  Kan.  1. 

A  letter  written  by  defendant  to  plaintiff,  in  which  he  states :  "I  think  you 
are  a  little  mistaken  about  my  notes  amounting  to  over  $800.  Even  at  com- 
pound interest,  they  would  not  amount  to  that  much.  The  whole  amount,  $600, 
on  interest  one  year  at  8  per  cent.,  would  only  be  $48,  and  for  three  years 
would  be  $144,  making  a  grand  total  of  $744" — and  assumes  that  the  amount 
of  the  notes  will  be  deducted  from  his  share  of  an  estate  of  which  plaintiff  is 
administrator,  is  a  sufficient  acknowledgment  to  stop  the  running  of  the 
statute  of  limitation.  Clarke  v.  King,  38  P.  281,  54  Kan.  222. 

Where  a  petition  on  a  note  had  letters  attached  which  were  alleged  to  have 
been  written  by  one  of  the  makers  to  the  payee  offering  to  deed  land  in  con- 
sideration of  the  release  of  the  note  and  mortgage  and  the  return  of  the 
note,  it  is  a  sufficient  acknowledgment  of  the  debt  to  toll  the  statutes.  Disney 
v.  Healy,  85  P.  287,  73  Kan.  326. 

Insufficient  acTcncncledgment. — An  answer  acknowledging  the  execution  and 
delivery  of  a  certain  note,  without  more,  does  not  acknowledge  that  such 
note  was  then  a  subsisting  obligation.  McMillan  v.  Leeds,  49  P.  159,  58  Kan. 
815. 

A  surety  having  signed  a  note  payable  to  the  order  of  a  bank,  afterwards 
executed  his  own  note  to  the  bank  for  the  full  amount  of  the  first  note,  across 
which  the  bank  wrote,  "Received  of  A.,  surety,  $1,949.04  in  full  payment," 
and  handed  to  the  surety,  to  collect  from  the  principal,  with  the  agreement 
that  he  was  to  turn  over  the  amount  collected,  and  assign  the  judgment  to 
the  bank,  upon  doing  which  he  was  to  receive  his  own  note,  which  was  held 
simply  as  security.  Held,  that  the  new  note  was  not  an  acknowledgment  of 
indebtedness  for  the  first  note,  nor  a  promise  by  the  surety  to  pay  that. 
Gragg  v.  Barnes,  4  P.  276,  32  Kan.  301. 

The  acknowledgment  of  liability  by  a  city  on  a  warrant  issued  in  payment 
for  a  sidewalk  built  in  front  of  a  private  lot  was  not  shown  by  a  recital,  in 
a  resolution  authorizing  an  assessment  against  the  lot  for  the  sidewalk  tax, 
that  the  warrant  had  been  issued  by  the  city  for  the  cost  of  the  walk  and 
bore  interest  from  date,  since  an  acknowledgment  must  be  of  a  subsisting  lia- 
bility, and  be  made  to  the  holder  of  the  debt,  or  his  representative.  King 
v.  City  of  Frankfort,  43  P.  983,  2  Kan.  App.  530. 

Letter  expressing  regret  at  inability  to  pay  account  held  insufficient  to  con- 
stitute acknowledgment  of  debt.  Corbett  v.  Hoss,  157  P.  1195,  98  Kan.  290; 
Hamilton  v.  Beaubien,  142  P.  245,  92  Kan.  944. 

A  letter  written  by  the  maker  of  a  note  and  a  mortgage  securing  it, 
stating  that,  if  he  could  keep  the  land  a  year  longer,  he  thought  he  could 
make  a  half  payment  in  a  year,  and,  if  he  could  not,  he  would  be  glad  to 
give  up  the  land,  and  requesting  that  he  be  given  a  "show,"  is  not  an  ac- 
knowledgment of-  an .  existing  debt  or  liability  which  will  toll  the  statute. 
Wood  v.  Merrietta,  71  P.  579,  66  Kan.  748. 

An  acknowledgment  in  writing  that  a  debt  once  existed,  but  which  does  not 

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I 
Art.  6)  EXTENSION  AND  WAIVER  §§  394-395 

direct,  and  not  dependent  for  its  meaning  on  some  other  writing, 
or  on  a  possible  construction  of  its  own  language.45 

After  such  acknowledgment,  the  action  is  not  brought  upon 
the  acknowledgment,  but  upon  the  original  debt.48 

§  395.     Extension  agreement 

An  express  promise  made  by  the  grantee  suspends  the  running 
of  limitations  against  the  foreclosure  of  a  mortgage  lien.47  An 
extension  agreement  made  with  one  having  no  interest  in  the  mort- 
gage will  not  interrupt  the  running  of  the  statute  of  limitations 
on  the  mortgage,  as  against  a  purchaser  from  the  maker  of  the 
extension  agreement.48 

Where  a  note  has  been  extended  by  agreement,  limitations  will 
not  commence  to  run  against  an  action  thereon  until  the  expira- 
tion of  the  extension.49 

Where  one  of  two  makers  procures  an  extension  for  payment 
of  a  note  providing  for  its  extension  without  releasing  either,  the 

contain  an  admission  of  a  present  subsisting  debt  on  which  the  party  is 
liable,  is  insufficient  to  remove  the  bar  of  limitation.  Hawkins  v.  Brown, 
97  P.  479,  78  Kan.  284. 

A  letter  written  by  the  maker  of  two  notes,  due  in  30  and  60  days,  re- 
spectively, to  the  holder,  in  reference  to  a  matter  of  "business"  between  them, 
in  which  he  offered  to  give  his  note,  payable  in  one  year,  for  a  sum  less  than 
one-half  of  the  two  notes,  is  not  a  sufficient  acknowledgment  of  liability  on 
the  notes  to  remove  the  bar  of  the  statute.  Andrew  v.  Kennedy,  46  P.  485,  4 
Okl.  625. 

A  promise  to  pay  a  debt  barred  by  the  statute  as  soon  as  the  debtor  was 
able  was  not  such  an  acknowledgment  as  would  take  the  debt  out  of  the 
statute.  Dezell  v.  Thayer,  44  P.  686,  2  Kan.  App.  587. 

A  letter  written  by  a  defendant  to  plaintiff,  wherein  he  states  that  he  is 
bound  that  the  plaintiff  shall  get  his  pay,  but  which  does  not  describe  the  debt, 
or  show  that  it  is  a  subsisting  debt,  owing  by  defendant  to  plaintiff,  will  not 
operate  to  take  the  debt  out  of  the  operation  of  the  statute  of  limitations. 
O'Riley  v.  Finigan,  58  P.  281,  9  Kan.  App.  889. 

A  writing  stating  that  the  writer  had  made  a  mortgage,  and  suggesting  to 
the  holder  ways  in  which  he  might  escape  loss  by  taking  care  of  the  property 
mortgaged,  is  not  such  "an  acknowledgment  of  an  existing  debt  or  liability" 
as  to  remove  the  bar  of  the  statute.  Haythorn  v.  Cooper,  69  P.  333,  65  Kan. 
338,  judgment  reversed  Cooper  v.  Haythorn,  70  P.  581,  65  Kan.  860. 

45  Richards  v.  Hayden,  57  P.  978,  8  Kan.  Apn.  816. 

48  Cleveland  Paper  Co.  v.  Mauk,  54  P.  1035,  8  Kan.  App.  562. 

47  Neosho  Valley  Inv.  Co.  v.  Huston,  59  P.  643,  61  Kan.  859. 

48  Investment  Securities  Co.  v.  Bergthold,  58  P.  469,  60  Kan.  813. 

49  Sedgwick  v.  Sanborn,  65  P.  661,  63  Kan.  884. 

(259) 


§    396  LIMITATIONS  (Ch.  7 

statute  of  limitations  runs  from  first  maturity  of  the  note  in  favor 
of  the  maker  not  a  party  to  the  extension  agreement.50 

§  396.     Part  payment 

The  statute  is  tolled  by  a  part  payment  in  money  or  its  equiva- 
lent, or  the  giving  of  a  note,51  or  the  giving  and  acceptance  of  a 
credit.52  The  part  payment  may  be  only  interest,53  and  written 

50  Hurley  v.  Gray,  103  Kan.  345,  173  P.  919. 

61  An  action  for  a  balance  due  on  a  note  is  not  barred;  there  being  a  part 
payment  made  by  him  on  the  note  within  five  years,  by  the  giving  of  a  second 
note.  Pracht  v.  McNee,  18  P.  925,  40  Kan.  1. 

52  A  credit  on  a  note,  such  as  will  toll  the  statute,  must  evidence  a  volun- 
tary payment.  Berry  v.  Oklahoma  State  Bank,  50  Okl.  484,  151  P  210,  L. 
R.  A.  1916A,  731.  A  credit  on  a  note  of  the  proceeds  of  the  sale  of  securities 
held  not  to  toll  the  statute.  Id. 

Credit  of  debt  owing  by  creditor  to  debtor  is  sumcient  to  lift  bar  of  limita- 
tions, when  made  with  consent  of  debtor.  Ross  v.  Lee  (Okl.)  172  P.  444. 

A  credit  entered  in  a  book  of  accounts  by  the  creditor,  after  the  account  had 
been  barred  by  the  statute  of  limitations,  is  not  sumcient  to  establish  such  a 
partial  payment  as  will  revive  the  account.  Hamilton  v.  Coffin,  26  P.  42,  45 
Kan.  556. 

A  creditor  cannot  prevent  the  running  of  the  statute  of  limitations  by  the 
arbitrary  allowance  of  a  credit  on  the  debt  of  which  his  debtor  had  no  knowl- 
edge and  to  which  ne  had  not  in  some  manner  given  his  assent.  Atchison,  T. 
&  S.  F.  Ry.  Co.  v.  Atchison  Grain  Co.,  70  P.  933,  judgment  modified  75  P.  1051, 
68  Kan.  5185,  1  Ann.  Cas.  639. 

A  receipt  indorsed  on  a  note,  after  action  is  barred  by  limitations,  does  not 
indicate  part  payment,  which  will  revive  liability.  Liphart  v.  Myers,  156  P. 
693,  97  Kan.  686 ;  Easter  v.  Easter,  24  P.  57,  44  Kan.  151. 

It  is  the  payment  of  a  portion  of  a  debt  which  tolls  the  statute  of  limita- 
tions, and  not  the  actual  indorsement  of  such  payment  on  the  instrument  evi- 
dencing such  debt.  Hastie  v.  Burrage,  77  P.  268,  69  Kan.  560. 

Where  a  mortgagee  of  land  in  possession  applies  the  rents  therefrom  to 
taxes  and  repairs,  and  indorses  the  balance  as  payments  upon  the  mortgage 
note,  with  the  mortgagor's  consent,  but  without  any  direction  to  do  so,  or 
other  authority  than  as  implied  from  such  facts,  the  indorsements  will  not 
remove  the  bar  of  the  statute  of  limitations.  Shanks  v.  Louthan,  99  P.  613,  79 
Kan.  363,  131  Am.  St.  Rep.  294. 

The"  action  of  plaintiff  in  voluntarily  placing  to  the  credit  of  a  defunct 
partnership  a  sum  collected  will  not  interrupt  in  his  own  favor  the  running 
of  limitations  as  to  an  action  for  a  partnership  accounting  and  settlement. 
Brooks  v.  Campbell,  159  P-  41,  97  Kan.  208,  Ann.  Cas.  1918D,  1105. 

An  indorsement  of  a  partial  payment,  without  the  knowledge  or  authority 
of  the  surety,  from  moneys  derived  from  the  sale  of  property  pledged  by  the 
principal,  does  not  take  the  note  out  of  the  operation  of  the  statute  of  limi- 
tations as  to  the  surety.  Peru  Plow  &  Wheel  Co.  v.  Ward,  51  P.  805,  6  Kan. 
App.  289. 

6a  See  note  53  on  following  page. 

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Art.  6)  EXTENSION  AND  WAIVER  §   396 

indorsement  of  the  interest  payment  is  not  essential.54  It  may 
have  been  made  by  a  natural  guardian  or  parent  for  a  minor,55  or 
by  a  legal  guardian56  or  trustee  in  bankruptcy,57  or  by  an  assignee 
for  the  benefit  of  creditors.58  But  the  payment  by  the  clerk  of 
the  distributive  share  of  a  scheduled  creditor  of  a  fund  paid  into 
court  by  an  assignee  for  the  benefit  of  creditors,  after  the  dis- 
charge of  the  assignee,  is  not  such  part  payment  as  to  stop  the 
running  of  limitations.59 

The  running  of  limitations  will  not  be  interrupted  by  a  pay- 
ment where  there  is  any  uncertainty  as  to  the  identity  of  the 
debt  on  which  it  was  made.60 

A  part  payment,  to  toll  the  statute  of  limitations,  must  have  been 
made  as  part  payment  by  the  obligor,  or  some  one  at  his  direction, 
and  under  such  circumstances  as  to  amount  to  an  acknowledg- 
ment of  an  existing  liability.61 

68  McLane  v.  Allison,  56  P.  747,  60  Kan.  441,  reversing  judgment  53  P.  781,  7 
Kan.  App.  263 ;  Spink  v.  Newby,  67  P.  437,  64  Kan.  883. 

A  mortgage  is  regarded  as  an  incident  to  the  note,  and,  where  the  note  and 
mortgage  are  once  barred,  payment  of  interest  on  the  note  revives  both  the 
note  and  the  mortgage  so  far  as  it  affects  the  interests  of  the  payers  and  con- 
tinues it  a  valid  lien  superior  to  the  rights  of  subsequent  lienors.  Clark  v. 
Grant,  109  P.  234,  26  Okl.  398,  28  L.  R.  A.  (N.  S.)  519,  Ann.  Gas.  1912B,  505. 

Where  a  person  purchased  land,  and  assumed  the  payment  of  a  mortgage 
thereon,  and  paid  interest  on  the  mortgage  debt  for  several  years  after  it  be- 
came due,  such  payments  were  sufficient  to  prevent  the  running  of  the  statute 
of  limitations  on  the  debt.  Woodruff  v.  Albright,  62  P.  250,  10  Kan.  App.  113. 

54  Topeka  Capital  Co.  v.  Merriam,  56  P.  757,  60  Kan.  397. 

55  Perry  v.  Horack,  64  P.  990,  63  Kan.  88,  88  Am.  St.  Rep.  225. 

56  First  Nat.  Bank  v.  Bangs,  136  P.  915,  91  Kan.  54,  judgment  affirmed  on 
rehearing  140  P.  896,  92  Kan.  270,  and  objections  to  taxation  of  costs  sus- 
tained 141  P.  1013,  y2  Kan.  1031. 

67  Simpson  v.  Tootle,  Wheeler  &  Hotter  Mercantile  Co..  141  P.  448,  42  Okl. 
275,  L.  R.  A.  1915B,  1221. 

58  Letson  v.  Kenyon,  1  P.  562,  31  Kan.  301. 

59  Smith-Frazer  Boot  &  Shoe  Co.  v.  White,  51  P.  790,  7  Kan.  App.  11;   White 
v.  Smith-Frazier  Boot  &  Shoe  Co.,  32  P.  632,  51  Kan.  34. 

«°  Brock  v.  Corbin,  146  P.  1150,  94  Kan.  542. 

61  Good  v.  Ehrlich,  72  P.  545,  67  Kan.  94. 

A  payment  made  upon  a  note  by  a  stranger  thereto  and  without  authority 
from  the  maker  does  not  toll  limitations.  Kelsay  v.  Kelsay  Land  Co.,  64 
Okl.  291,  166  P.  173. 

Where  a  mortgagor  was  in  default  for  nonpayment  of  the  first  of  a  series 
of  notes,  and  for  nonpayment  of  taxes,  the  running  of  limitations  was  not 
suspended  by  payment  of  the  taxes  by  a  subsequent  purchaser  from  the  mort- 

(261) 


§    396  LIMITATIONS  (Ch.  7 

fi.  part  payment  to  a  mortgagee  who  has  made  an  unrecorded 
assignment  is  sufficient  to  toll  limitations.62 

Partial  payments  by  one  debtor  on  a  note  will  not  suspend  the 
running  of  the  statute  of  limitations  in  favor  of  the  other  debtors 
thereon,  although  the  party  paying  be  the  principal  debtor  and 

the  others  only  sureties.63 

I 

gagor.  Snyder  v.  Miller,  80  P.  970,  71  Kan.  410,  69  L.  R.  A.  250,  114  Am.  St. 
Rep.  489. 

Husband  and  ^cife. — A  mortgage  on  a  homestead  was  given  by  a  husband 
and  wife  to  secure  the  husband's  note.  The  latter  paid  interest  without  tlie 
knowledge  of  the  wife.  Within  five  years  after  the  last  payment  an  action 
was  brought  to  foreclose.  Held,  that  the  mortgaged  land  was  subject  to  sale 
for  payment  of  the  note.  Skinner  v.  Moore,  67  P.  827,  64  Kan.  360,  91  Am. 
St.  Rep.  244. 

A  husband  and  wife  executed  a  mortgage  note,  and  the  husband  died,  hav- 
ing previously  conveyed  title  to  his  wife,  who  rented  the  farm  to  her  son-in- 
law,  and  thereafter  died.  The  son-in-law  and  wife  continued  in  possession. 
and  within  five  years  from  maturity  of  the  note  made  a  small  payment,  and 
continued  in  possession  until  action  to  foreclose  was  brought,  with  the  acqui- 
escence of  the  brothers  and  sisters  of  the  wife,  and  he,  with  her  consent, 
made  several  payments  on  the  debt  and  paid  the  taxes  from  the  proceeds  of 
the  crops  raised  on  the  land.  No  interval  of  five  years  elapsed  between  such 
payments.  Held,  that  the  payments  prevented  the  running  of  limitations  in 
favor  of  any  of  the  heirs  against  the  debt.  Ellis  v.  Snyder,  112  P.  594,  83  Kan. 
638,  32  L.  R.  A.  (N.  S.)  253. 

A  husband  and  wife  jointly  executed  a  note,  and  secured  the  same  by  a 
mortgage  on  real  estate  belonging  to  the  wife.  The  note  became  barred  as 
to  the  wife  by  the  statute  of  limitations,  but  not  as  to  the  husband,  he  having 
made  payments  which  tolled  the  statute.  Held,  that  the  mortgage  could  be 
foreclosed,  and  the  wife's  land  sold  to  pay  the  judgment  rendered  against  the 
husband.  Jackson  v.  Longwell,  64  P.  991,  63  Kan.  93. 

G.  and  his  wife  borrowed  money  from  a  loan  company,  and,  to  secure  such 
loan,  gave  a  mortgage  on  real  estate  owned  by  the  wife ;  the  proceeds  of  such 
loan  being  used  to  pay  off  a  mortgage  held  by  M.  upon  such  real  estate.  Prior 
to  the  execution  and  delivery  of  the  mortgage  given  to  the  loan  company,  the 
wife  had  been  adjudged  insane,  and  the  husband  appointed  as  her  guardian. 
The  fact  of  the  wife's  insanity  was  fraudulently  concealed  from  the  company, 
and  it  had  no  actual  notice  of  such  insanity.  Payments  of  interest  were  made 
upon  the  mortgage  given  to  the  loan  company  within  less  than  five  years  prior 
10  the  commencement  of  foreclosure  proceedings  upon  such  mortgage.  Held, 
that  the  payment  of  interest  by  G.  was  sufficient  to  toll  the  statute.  Gano  v. 
Martin,  61  P.  460,  10  Kan.  App.  384. 

62  Girard  Trust  Co.  v.  Owen,  112  P.  619,  83  Kan.  692,  33  L.  R.  A.  (N.  S.)  262. 

63  Hurley  v.  Gray,  103  Kan.  345,  173  P.  919;   McMillan  v.  Leeds,  49  P.  159, 
58  Kan.  815. 

Partial  payments  made  by  one  debtor  on  a  note  will  not  suspend  the  running 
of  the  statute  of  limitations  in  favor  of  the  other  debtors  thereon.  Wellington 
Nat.  Bank  v.  Thomson,  59  P.  178,  9  Kan.  App.  667. 

(262) 


Art.  6)  EXTENSION  AND  WAIVER  §§  396~397 

Where  one  of  two  joint  makers  of  a  note  makes  a  payment 
thereon  after  it  is  due  as  the  agent  of  the  other  and  with  his  mon- 
ey, and  states  that  the  money  belongs  to  his  co-obligor  for  whom 
he  is  paying  it,  it  does  not  affect  the  operation  of  limitations  as 
to  himself.64 

When  one  of  two  partners  sells  out  to  the  other  who  assumes  the 
firm  indebtedness,  his  part  payment  of  a  note  given  by  partners 
prior  to  such  sale  for  a  partnership  debt  tolls  the  statute  of  lim- 
itations as  to  the  other  maker;  the  payee  having  had  no  notice  of 
the  dissolution.68 

Where  land  is  purchased  by  a  firm,  which  assumes  a  mortgage 
thereon,  and  title  is  taken  in  the  individual  names  of  the  partners, 
and  the  partnership  ceases  to  do  business,  and  one  partner  at- 
tempts to  convey  an  undivided  one-half  interest  in  the  land,  the 
other  partner  may  pay  a  portion  of  the  mortgage  debt  and  thus 
extend  the  running  of  limitations  on  the  mortgage  as  to  the  en- 
tire tract.66 

Where  stockholders  and  officers  of  a  corporation  give  a  note  for 
money  for  the  corporation,  and  pay  interest  for  nine  years  out  of 
corporate  funds,  they  cannot  avail  themselves  of  limitations  on 
the  theory  that  they  are  sureties,  and  have  personally  made  no 
payments.67 

Where  limitations  have  run  against  a  claim,  the  payment  of 
part  of  it  by  way  of  compromise  and  settlement,  in  consideration 
of  release  in  full,  does  not  remove  the  bar'of  the  statute  as  to  re* 
mainder.68 

The  payment  dates  from  the  time  paid,  and  not  from  the  time 
of  indorsement  when  there  is  a  difference.09 

§  397.     Waiver  of  limitations 

The  statute  may  be  waived.  Where  a  board  of  education  en- 
tered into  a  valid  agreement  to  apply  the  judgment  fund  to  judg- 
ments in  the  order  of  entry,  and  complied  therewith,  it  could  not, 
after  the  expiration  of  the  statutory  period  when  the  judgment 

6*  Elrnore  v.  Fanning,  117  P.  1019,  85  Kan.  501,  38  L.  R.  A.  (N.  S.)  685. 

65  Campbell  v.  Herrick,  104  Kan.  657,  180  P.  237. 

ee  McKee  v.  Covalt,  81  P.  475,  71  Kan.  772 ;    Bucher  v.  Same,  Id. 

6T  Gordon  v.  Russell,  158  P.  661,  98  Kan.  537. 

cs  Nolan  v.  Board  of  County  Conrrs  of  Ellis  County,  101  Kan.  513,  168  P.  326. 

69  Benton  v.  Yurann,  55  P.  676,  8  Kan.  App.  305. 

(263) 


§§  397-399  LIMITATIONS  (Ch.  7 

became  dormant  for  failure  to  issue  execution,  plead  limitations 
as  a  bar  to  those  Judgments  not  yet  reached  for  payment  under 
the  agreement.70 

Where  default  had  commenced  to  run  for  nonpayment  of  a  mort- 
gage note  and  taxes,  a  purchaser  from  the  mortgagor  did  not  waive 
the  right  to  plead  limitations  by  subsequently  paying  the  taxes.71 


ARTICLE  VII 

CONTRACT  LIMITATIONS 

Sections 

398.  In  general. 

399.  Insurance  policy. 

400.  Mutual   accident  and  sickness  insurance 

§  398.    In  general 

A  provision  of  an  interstate  shipment  contract  that  the  shipper 
must  bring  his  action  within  six  months  is  reasonable,  valid,  and 
binding.72 

§  399.     Insurance  policy 

A  provision  in  the  standard  form,  of  fire  insurance  policy,  lim- 
iting the  right  to  sue  on  a  policy  to  one  year,  is  enforceable,  where 
no  extrinsic  facts  excuse  delay  in  commencing  the  action.  The 
period  of  limitation  begins  to  run  against  an  action  on  such  a 
policy  from  the  day  of  the  fire,  though  the  policy  provides  the 
loss  shall  not  become  payable  until  60  days  after  notice,  ascertain- 
ment, estimate,  and  proof  of  loss  have  been  received  by  the  in- 
surer.73 

A  provision  of  an  insurance  policy  that  no  suit  or  action  on  the 
policy  shall  be  maintainable  unless  commenced  not  later  than  six 
months,74  is  void;  and  as  to  causes  of  action  arising  before  the 

70  In  re  Board  of  Education  of  City  of  Perry,  130  P.  951,  35  Okl.  733. 

71  Snyder  v.  Miller,  80  P.  970,  71  Kan.  410,  69  L.  R.  A.  250, 114  Am.  St.  Rep. 
489. 

72  St.  Louis  &  S.  F.  R.  Co.  v.  Pickens,  51  Okl.  455,  151  P.  1055;   St.  Louis,  I. 
M.  &  S.  Ry.  Co.  v.  Bentley  (Okl.)  176  P.  250. 

7  3  Rev.  Laws  1910,  §  3482;  Wever  v.  Pioneer  Fire  Ins.  Co.,  49  Okl.  546, 
153  P.  1146,  L.  R.  A.  1918F,  507. 

74  Rev.  Laws  1910,  §  977;  Oklahoma  Fire  Ins.  Co.  v.  Wagester,  38  Okl.  291, 
132  P.  1071. 

(264) 


Art.  7)  CONTRACT   LIMITATIONS  §    400 

adoption  of  the  standard  policy  in  1909,  a  limitation  to  twelve 
months  after  the  fire,  or  loss,  was  void.75 

§  400.     Mutual  accident  and  sickness  insurance 

Any  mutual  accident  and  sickness  insurance  company  "may  lim- 
it the  time  within  which  suit  may  be  brought  against  it  or  any 
claim  based  upon  its  policies  or  certificates  of  membership,  and 
after  the  expiration  of  the  time  thus  limited,  shall  not  be  liable 
therefor:  Provided,  such  limitation  shall  be  incorporated  in,  and 
form  a  part  of  the  contract  between  the  corporation,  association 
or  society  and  the  assured  or  its  members,  and  provided  further 
that  such  limitation  shall  not  be  limited  to  a  period  of  less  than 
one  year  from  the  time  such  right  of  action  accrues."  76 

™  Keys  v.  Phoenix  Ins.  Co.,  132  P.  820,  37  Okl.  514;  Keys  &  Keys  v.  Wil- 
liamsburg  City  Fire  Ins.  Co.  of  Brooklyn,  N.  Y.,  132  P.  818,  37  Okl.  482; 
Same  v.  Mechanics'  &  Traders'  Ins.  Co.  of  New  Orleans,  La.,  132  P.  819,  37 
Okl.  480 ;  Seay  v.  Commercial  Union  Assur.  Co.  Limited,  of  London,  England, 
140  P.  1164,  42  Okl.  83. 

»«  Sess.  Laws  1913,  p.  230,  §  14. 

(265) 


§  401 


PARTIES 


(Ch.8 


CHAPTER  VIII 

PARTIES 

Sections 

401-106.  Article  I. — In  general. 

407-423.  Article  II.— Plaintiff. 

424-436.  Article  III.— Defendant. 

437-139.  Article  IV.— Intervener. 

440-443.  Article  V. — Defects,   objections,   and   amendments. 


ARTICLE  I 

IN  GENERAL 

Sections 

401.  Designation  of  parties. 

402.  Counties — Dental  board. 

403.  Married  women. 

404.  Joinder — .Necessary      parties. 

405.  Where  parties  numerous. 

406.  Style. 

§  401.     Designation  of  parties 

The  omission  of  or  a  mistake  in  an  initial  does  not  affect  the  ju- 
risdiction of  the  court,  where  the  right  party  is  served  and  has 
appeared.1 

One  may,  without  abandoning  real  name  and  without  fraudu- 
lent intent,  adopt  any  name  by  which  he  may  transact  business, 
execute  contracts,  and  sue  and  be  sued.2 

One  may  lawfully  change  his  name  without  resort  to  legal  pro- 
ceedings, and  for  all  purposes  the  name  so  assumed  will  consti- 
tute his  legal  name  as  if  he  had  borne  it  from  birth.3 

The  law  does  not  generally  recognize  a  middle  name,  but  looks 
rather  to  the  identity  of  the  individual,  and  when  this  identity  is 
established,  this  is  all  that  the  law  requires.* 

1  Maine  v.  Edmonds,  58  Okl.  645,  160  P.  483. 

2  Badger  Lumber  Co.  v.  Collinson,  156  P.  724,  97  Kan.  791. 

The  sole  owner  and  manager  of  a  business  may  in  good  faith  conduct  his 
business  under  any  name,  and  sue  under  such  name  for  breach  of  contract. 
Robinovitz  v.  Hamill,  44  Okl.  437,  144  P.  1024,  L.  R.  A.  1915D,  981. 

8  Modern  Brotherhood  of  America  v.  White  (Okl.)  16S  P.  794,  L.  R.  A. 
1918B,  520. 

*  Maine  v.  Edmonds,  58  Okl.  645,  160  P.  483. 

(266) 


Art.  1)  IN  GENERAL  §§  401-403 

Ordinarily,  identity  of  name  is  prima  facie  evidence  of  identity 
of  person,  and  it  devolves  upon  those  who  deny  the  identity  to 
overcome  the  presumption  by  proof.5 

Two  names,  though  spelled  differently,  if  they  sound  alike  or  so 
nearly  alike  that  the  attentive  ear  finds  difficulty  in  distinguishing 
them,  are  regarded  as  the  same.8 

§  402.     Counties — Dental  board 

A  county  may  sue  and  be  sued.7 

"The  board  of  dental  examiners  may  sue  or  be  sued  under  the 
name  of  the  state  board  of  dental  examiners  of  Oklahoma;  and 
no  suit  shall  abate  by  reason  of  any  change  of  membership  of  the 
board."  8 

§  403.     Married  women 

"A  married  woman  may  sue  and  be  sued  in  the  same  manner  as 
if  she  were  unmarried."  9 

"Woman  shall  retain  the  same  legal  existence  and  legal  person- 

»  Bayha  v.  Munford,  49  P.  601,  58  Kan.  445. 

0  Maine  v.  Edmonds,  58  Okl.  645,  160  P.  483. 

The  names  "Mollie  Brown"  and  "Mary  Brown"  are  the  same,  and  con- 
stitute only  one  name,  and  the  administering  of  medicines  and  drugs  to 
Mollie  Brown  was  the  administering  of  such  medicines  to  Mary  Brown ;  it 
apppearing  that  no  claim  was  made  in  the  court  below  that  Mollie  Brown  was 
not  Mary  Brown,  and  no  question  was  raised  in  reference  thereto.  State  v. 
Watson,  1  P.  770,  30  Kan.  281. 

Idem  sonans. — "Johnston"  and  "Johnson"  are  idem  sonans.  Miltonvale 
State  Bank  v.  Kuhnle,  31  P.  1057,  50  Kan.  420,  34  Am.  St.  Rep.  129. 

"Barbara"  and  "Barbra"  are  idem  sonans.  State  v.  Haist,  34  P.  453,  52 
Kan.  35. 

The  names  "Bert"  and  "Burt"  are  idem  sonans.  State  v.  Johnson,  79  P.  732, 
70  Kan.  861. 

In  ejectment  against  a  defendant  described  as  "Ned  Armstead,"  in  which 
plaintiff  derives  title  through  a  judgment  against  one  designated  as  "Ned 
Almstead"  and  "Ned  Olmstead,"  thp  testimony  of  the  officer  who  served  the 
summons  in  the  action  in  which  such  judgment  was  rendered,  that  such  serv- 
ice was  made  on  the  defendant  in  the  ejectment  action  justifies  treating 
"Almstead"  and  "Olmstead"  as  different  spellings  of  the  name  "Armstead." 
Armstead  v.  Jones,  80  P.  56,  71  Kan.  142. 

'  Rev.  Laws  1910,  §  1497. 

Where  Rev.  Laws  1910,  §  1497,  requires  action  to  be  instituted  in  name  of 
county,  reference  must  be  made  to  section  1500,  requiring  county  to  sue  in 

name  of  "Board  of  County  Commissioners  of  the  County  of ."  Smith 

v.  State,  13  Okl.  Cr.  619,  166  P.  463. 

8  Rev.  Laws  1910,  §  6828. 

9  Rev.  Laws  1910,  §  4684. 

(267) 


§  404  PARTIES  (Ch.  8 

ality  after  marriage  as  before  marriage,  and  shall  receive  the  same 
protection  of  all  her  rights  as  a  woman,  which  her  husband  does 
as  a  man ;  and  for  any  injury  sustained  to  her  reputation,  person, 
property,  character  or  any  natural  right,  she  shall  have  the  same 
right  to  appeal  in  her  own  name  alone  to  the  courts  of  law  or  eq- 
uity for  redress  and  protection  that  her  husband  has  to  appeal  in 
his  own  name  alone."  10 

§  404.     Joinder — Necessary  parties 

"Of  the  parties  to  the  action,  those  who  are  united  in  interest 
must  be  joined  as  plaintiffs  or  defendants;  but  if  the  consent  of 
one  who  should  have  been  joined  as  plaintiff  cannot  be  obtained, 
he  may  be  made  a  defendant,  the  reason  being  stated  in  the  pe- 
tition." 1X 

Where  a  firm  of  two  attorneys  bring  action  on  an  oral  contract 
for  services,  refusal  to  bring  in  as  a  party  another  attorney  who 
was  in  partnership  with  plaintiffs  in  another  firm  was  not  error.12 

The  shipper  of  live  stock,  under  a  written  contract  obligating 
him  to  hold  the  carrier  harmless  for  any  damages  it  might  be  re- 
quired to  pay  the  caretaker  accompanying  the  stock,  is  not  a  nec- 
essary party  to  an  action  by  the  caretaker  against  the  carrier  for, 
personal  injuries.13 

In  order  to  obtain  the  rescission  of  a  contract  of  sale,  all  parties 
interested  in  the  property  involved  must  be  brought  before  the 
court.14 

10  Rev.  Laws  1910,  §  3363. 

11  Rev.  Laws  1910,  §  4692. 

It  was  alleged  that  plaintiffs,  LJ  and  husband,  owned  and  resided  on  a 
homestead,  and  that  the  husband  executed  a  conveyance  of  the  same  to  EL, 
without  consent  of  his  wife ;  that  subsequently  H.  and  his  wife.  Lydia,  exe- 
cuted a  deed  with  the  usual  covenants  to  P.  The  action  to  set  aside  both 
conveyances  was  brought  against  H.  and  P.,  without  joining  as  a  defendant 
Lydia  H.  Held,  that  she  is  a  necessary  party  plaintiff  in  the  action  to  cancel 
the  deed  in  which  she  joined  as  grantor.  Hill  v.  Lewis,  25  P.  589,  45  Kan. 
162. 

12  Grisso  v.  Crump,  61  Okl.  83,  160  P.  453;    Rev.  Laws  1910,  §  4696. 

13  Missouri,  K.  &  T.  Ry.  Co.  v.  Lynn,  62  Okl.  17,  161  P.  1058. 

14  Constant  v.  Lehman,  34  P.  745,  52  Kan.  227. 

Where,  in  an  action  to  set  aside  a  deed  on  the  ground  of  fraud,  such  deed 
was  executed  by  husband  and  wife,  and  where  the  former  died  before  the 
action  was  brought,  a  child  born  subsequent  to  the  delivery  of  the  deed  is  a 
proper  party  to  such  action,  and  may  be  joined  with  the  widow  as  plaintiff 
therein.  Brown  v.  Brown,  64  P.  599,  62  Kan.  666. 

(268) 


Art.  1)  IN  GENERAL  §§  404-406 

A  judgment  in  ejectment  is  not  void  as  to  defendants  in  actual 
possession  because  the  holder  of  the  legal  title,  not  in  possession, 
was  not  made  a  party.15 

Where  more  than  legal  rate  of  interest  has  been  paid  on,  note 
by  one  of  joint  and  several  makers,  party  by  whom  it  has  been  paid 
may  recover  on  account  of  usury,  without  joining  other  makers.16 

§  405.    Where  parties  numerous 

"When  the  question  is  one  of  common  or  general  interest  of 
many  persons,  or  when  the  parties  are  very  numerous,  and  it  may 
be  impracticable  to  bring  them  all  before  the  court,  one  or  more 
may  sue  or  defend  for  the  benefit  of  all."  17 

For  example,  where  property  is  claimed  by  a  church  organiza- 
tion not  incorporated,  and  the  property  is  in  dispute,  any  number 
of  the  members  of  such  association  or  congregation  may  maintain 
an  action  for  the  benefit  of  the  church.18 

§  406.     Style 

"In  a  civil  action,  the  party  complaining  shall  be  known  as  the 
plaintiff,  and  the  adverse  party  as  the  defendant."  19 

«  Fulton  v.  Mathers,  90  P.  256,  75  Kan.  770. 

16  Security  State  Bank  v.  Chandler,  64  Okl.  10,  166  P.  162.    See  Rev.  Laws 
1910,  §  1005,  as  to  usury. 

17  Rev.  Laws  1910,  §  4693. 

is  Fink  v.  Umscheid,  19  P.  623,  40  Kan.  271,  2  L.  R.  A.  146. 
«  Rev.  Laws  1910,  §  4651. 

(269) 


§  407  PARTIES  (Ch.  8 

ARTICLE  II 

PLAINTIFF 

Sections 

407.  Real  party  in  interest. 

408.  Joinder. 

409.  New  party. 

410.  Capacity  to  sue. 

411.  Corporations.  •     . 

412.  In  particular  cases. 

413.  Creditors. 

414.  Stockholders'  suit. 

415.  Insurance. 

416.  Taxpayers — Injunction. 

417.  Assignee  and  assignor. 

418.  Persons  not  personally  interested. 

419.  Guardian. 

420.  Infants — Wards. 

421.  Tenants  in  common. 

422.  Government    and    governmental    agencies. 

423.  Action  for  death. 

§  407.     Real  party  in  interest 

"Every  action  must  be  prosecuted  in  the  name  of  the  real  party 
in  interest,  except  as  otherwise  provided  in  this  article;  but  this 
section  shall  not  be  deemed  to  authorize  the  assignment  of  a  thing 
in  action,  not  arising  out  of  contract."  20 

The  test  of  whether  one  is  the  real  party  in  suit  is  :  Does  he  satis- 
fy the  call  for  the  person  who  has  the  right  to  control  and  receive 
the  fruits  of  the  litigation?  21 

20  Rev.  Laws  1910,  §  4681. 

Every  action  must  be  prosecuted  in  the  name  of  the  real  party  in  inter- 
est. Maxia  v.  Oklahoma  Portland  Cement  Co.  (Okl.)  176  P.  907. 

Under  Code  Civ.  Proc.  p.  767,  c.  66,  §  26,  providing  that  every  action  must 
be  prosecuted  in  the  name  of  the  real  party  in  interest,  if  an  action  is  pros- 
ecuted in  the  name  of  the  government  upon  the  relation  of  certain  individuals, 
these  individuals  must  be  the  real  parties  in  interest.  United  States  v. 
Choctaw,  O.  &  G.  R.  Co.,  41  P.  729,  3  Okl.  404.  If  the  relief  sought  in  an 
action  brought  in  the  name  of  the  government  on  the  relation  of  certain  in- 
dividuals is  merely  for  the  protection  of  private  rights,  the  relators  must 
show  some  special  interest,  and  their  rights  must  clearly  appear,  since  they 
are  regarded  as  the  real  parties.  Id.  If  the  United  States  is  the  real  party  in 
interest  in  a  proceeding  brought  on  the  relation  of  certain  individuals,  such 
relators  are  improperly  joined.  Id.  If  the  object  of  a  proceeding  is  to  compel 
the  performance  of  a  public  duty  or  to  restrain  the  commission  of  a  public 
wrong,  the  people  are  the  real  parties  in  interest,  and  the  action  must  be 

-1  Stinchcomb  v.  Patteson   (Okl.)  167  P.  619. 
(270) 


Art.  2)  PLAINTIFF  §§  407-408 

Plaintiff  in  ejectment  is  not  the  "real  party  in  interest,"  entitled  to 
bring  action,  unless  he  is  a  party  who  may  be  benefited  or  injured 
by  the  judgment.22 

The  assignee  of  a  lease  contract  is  the  real  party  in  interest  in  ac- 
tion of  ejectment.23 

Defendant  has  a  right  to  insist  that  an  action  against  him  shall  be 
brought  by  the  real  party  in  interest  under  the  statute,  but  it  is  suffi- 
cient if  defendant  is  not  shut  out  from  defenses  and  counterclaims, 
and  is  fully  protected  from  any  further  liability.2* 

Where  a  widow  brings  suit  in  the  name  of  her  deceased  husband, 
and  the  evidence  discloses  that  since  his  death  she  has  signed  his 
name,  instead  of  her  own,  in  business  transactions,  and  that  she  is 
known  by  that  name  as  well  as  by  her  own,  such  suit  is  prosecuted 
in  the  name  of  the  real  party  in  interest,  and  the  record  sufficiently 
identifies  her  to  bar  a  similar  action  between  the  same  parties.25 

§  408.    Joinder 

All  persons  having  an  interest  in  the  subject  of  the  action,  and  in 
obtaining  the  relief  demanded,  may  be  joined  as  plaintiffs,  except 
as  otherwise  provided  in  this  article.20 

brought  in  the  name  of  the  territory  upon  the  relation  of  some  member  of  the 
public  who  shows  a  personal  interest  in  the  result.  Id. 

An  informer  cannot  maintain  an  action  for  damages  under  the  first  pro- 
vision of  Comp.  Laws  1909,  §  7413,  against  a  public  officer  for  malfeasance  in 
office,  the  right  being  given  to  innocent  persons  suffering  special  damage,  as 
distinguished  from  those  injured  generally  in  common  with  others.  McGuire 
v.  Skelton,  129  P.  739,  36  Okl.  500. 

Abstracters. — An  abstracter's  liability,  under  Wilson's  Rev.  &  Ann.  St.  1903. 
§  1,  is  not  confined  to  the  person  for  whom  he  makes  an  abstract.  Sackett  v. 
Rose,  55  Okl.  398,  154  P.  1177,  L.  R.  A.  1916D,  820.  A  person  injured  by  in- 
completeness or  error  in  an  abstract  of  title  is  entitled  to  all  damages  prox- 
imately  resulting.  Id. 

Under  Wilson's  Rev.  &  Ann.  St.  1903,  §  1,  an  abstracter  is  liable  on  his 
bond  for  defects  in  an  abstract  not  only  to  the  person  ordering  same,  but  to 
any  one  relying  on  same  to  his  injury.  Scott  v.  Jordan,  55  Okl.  708,  155  P. 
498.  Under  Wilson's  Rev.  &  Ann.  St.  1903,  §  1,  an  abstracter  vouches  for  the 
correctness  of  an  abstract  compiled  and  certified  by  him.  Id. 

2  2  Miller  v.  Grayson,  64  Okl.  122,  166  P.  1077;  Jackson  v.  McGilbray,  46 
Okl.  208,  148  P.  703. 

23  McElroy  v.  Moose,  51  Okl.  173,  151  P.  857. 

24  Rullman  v.  Rullman,  106  P.  52,  81  Kan.  521. 

25  Deets  v.  Smith,  51  P.  581,  6  Kan.  App.  601. 

26  Rev.  Laws  1910,  §  4690. 

This  does  not  mean  that  all  interested  must  join.     Bissey  v.  City  of  Mar- 
ion, 104  Kan.  311,  178  P.  611. 
Plaintiff  and  two  others  were  appointed  by  a  city  as  a  committee  to  super- 

(271) 


§   408  PARTIES  (Ch.  8 

All  parties  united  in  interest  as  parties  plaintiff  in  the  subject- 
matter  of  the  litigation  must  be  joined  as  plaintiff.27 

Persons  in  whose  favor  an  obligation  exists  must  all  join  in  an 
action  thereon,  unless  the  interest  of  each  of  the  parties  to  be  bene- 
fited is  specially  stated  in  the  contract,  or  is  determined  by  the 
character  of  the  obligation.28 

Where  two  parties  have  joint  interest  in  property,  they  must  join 
in  an  action  for  injuries  thereto.29 

Where  two  or  more  persons  have  a  separate  interest  in  property 
and  sustain  a  separate  damage  thereto,  they  cannot  join  in  the  same 
action,  though  their  several  injuries  were  caused  by  the  same  act.30 

intend  the  construction  of  waterworks  for  the  city,  plaintiff  being  appointed 
because  of  his  knowledge  and  experience  as  a  civil  engineer.  Any  two  of  the 
committee  were  authorized  to  act.  They  all  entered  upon  the  discharge  of 
their  duties  under  the  appointment,  but  did  not  all  do  the  same  amount  of 
work.  The  work  for  which  they  were  appointed  was  all  performed  and  com- 
pleted and  was  accepted  by  the  city.  Held,  that  plaintiff  might  thereafter 
maintain  an  action  against  the  city  for  compensation  for  his  individual  serv- 
ices, without  joining  with  him  as  plaintiffs  the  other  members  of  the  com- 
mittee, under  Civ.  Code,  §  35,  providing  that  "all  persons  having  an  interest 
in  the  subject  of  the  action,  and  in  obtaining  the  relief  demanded,  may  be 
joined  as  plaintiffs,"  and  section  37,  providing  that)  "of  the  parties  to  the 
action  those  who  are  united  in  interest  must  be  joined  as  plaintiffs  or  de- 
fendants." City  of  Ellsworth  v.  Rossiter,  26  P.  674,  46  Kan.  237. 

Decedent,  in  consideration  of  a  conveyance  to  him  of  land,  verbally  agreed 
to  pay  one-half  of  a  mortgage  on  other  land  conveyed  at  the  same  time  by 
his  grantor  to  plaintiff,  and  thereafter  verbally  agreed  with  plaintiff  to  pay 
the  same  proportion  of  a  mortgage  given  in  renewal  of  said  mortgage.  On 
his  dying  seised  of  the  land,  without  sufficient  personalty  to  pay  his  share  of 
the  mortgage,  and  on  his  administrator's  refusal  to  allow  the  claim  based  on 
said  agreement  against  the  estate,  plaintiff  sued  the  administrator,  praying 
that  the  land  be  subjected  to  payment  of  the  claim.  Held,  that  there  was  no 
defect  of  parties  plaintiff.  McDowell  v.  Miller,  42  P.  402,  1  Kan.  App.  666. 

Where  the  sureties  on  a  sheriff's  bond  have  paid  the  judgment  rendered 
against  him  for  making  an  illegal  levy,  the  sureties  paying  the  same  must  all 
be  joined  as  plaintiffs  in  an  action  to  recover  the  money  paid  from  the  orig- 
inal attachment  plaintiff,  since  "united  in  interest,"  within  Code  Civ.  Proc. 
§  37.  Burkett  v.  Lehman-Higginson  Grocery  Co.,  56  P.  856,  8  Okl.  84.  In 
all  actions  those  between  whom  there  is  a  unity  of  legal  interest  must  be 
joined  as  plaintiffs.  Id. 

Evidence  in  an  action  to  recover  the  price  of  corporate  stock,  which  plain- 
tiffs were  fraudulently  induced  to  buy,  held  to  establish  the  right  of  plaintiffs 
to  sue  jointly,  where  it  showed  that  the  money  paid  for  the  stock  came  from 
a  common  fund.  Ellsworth  v.  Trinkle,  153  P.  543,  96  Kan.  666. 

27  Stinchcomb  v.  Patteson  (Okl.)  167  P.  619. 

28  Burkett  v.  Lehmen-Higginson  Grocery  Co.,  56  P.  856,  8  Okl.  84. 

29  St.  Louis  &  S.  F.  R.  Co.  v.  Webb,  128  P.  252,  36  Okl.  235. 

3°  St.  Louis  &  S.  F.  R.  Co.  v.  Dickerson,  118  P.  140,  29  Okl.  386. 

(272) 


Art.  2)  PLAINTIFF  §§  408-410 

Where  plaintiffs  had  severally  stored  grain  in  an  elevator,  under 
an  agreement  to  pay  storage  thereon,  and  that  each  might  remove 
his  grain  whenever  he  saw  fit,  they  could  not  properly  join  as  plain- 
tiffs in  an  action  for  conversion  of  tne  grain.31 

An  insurer  may  join  with  the  insured  as  plaintiff  to  recover  for 
the  loss  of  property  negligently  destroyed  by  fire.32 

Mortgagees  under  mortgages  delivered  and  filed  at  the  same  time 
may  join  in  an  action  for  the  conversion  of  the  mortgaged  prop- 
erty.33 

A  contract  entered  into  and  performed  jointly  by  two  or  more 
persons,  the  compensation  for  the  performance  of  which  is  separate 
and  distinct  as  to  each,  may  be  sued  upon  separately  by  each  to  re- 
cover the  amount  due  to  him  or  the  damages  sustained  by  him.34 

Joint  action  may  be  maintained  on  a  guardian's  bond  on  behalf 
of  two  wards  for  an  accounting-  and  settlement,  where  they  have  a 
joint  interest  in  the  fund  or  property.35 

One  who,  though  not  the  judgment  plaintiff,  is  the  real  owner  of 
the  judgment  and  of  the  note  on  which  it  is  based,  may  sue  on  the 
constable's  bond  for  his  failure  to  pay  over  the  proceeds  of  the  exe- 
cution, without  joining  as  plaintiff  the  judgment  plaintiff.88 

In  action  on  note,  payee  may  be  joined  as  plaintiff  with  another 
whojs  beneficially  interested.37 

§  409.     New  party 

"When,  in  an  action  for  the  recovery  of  real  or  personal  property, 
any  person  having  an  interest  in  the  property  applies  to  be  made  a 
party,  the  court  may  order  it  to  be  done."  38 

§  410.     Capacity  to  sue 

The'  capacity  to  sue  is  the  right  to  come  into  court,  and  differs 
from  a  cause  of  action,  which  is  the  right  to  relief  in  court.39 

81  Central  State    Bank  of  Geneseo  v.  Walker,  53  P.  379,  7  Kan.  App.  748. 

82  Atchison,  T.  &  S.  F.  R.  Co.  v.  Neet,  54  P.  134,  7  Kan.  App.  495. 
33  Hays  v.  Farwell,  35  P.  794,  53  Kan.  78. 

3*  Curry  v.  Kansas  &  C.  P.  Ry.  Co.,  48  P.  579,  58  Kan.  6;   Kansas  &  C.  P. 
R.  Co.  v.  Curry,  51  P.  576,  6  Kan.  App.  561. 
ss  Donnell  v.  Dansby,  159  P.  317,  58  Okl.  165. 
se  Dodge  v.  Kincaid  Bros.,  1  P.  107,  30  Kan.  346. 
87  Wade  v.  Hall,  64  Okl.  173,  166  P.  720. 
38  Rev.  Laws  1910,  §  4697. 
89  Howell  v.  lola  Portland  Cement  Co.,  121  P.  346,  86  Kan.  450. 

HON.PL.&  PBAC.— 18  (273) 


§§  411-412  PARTIES  (Ch.  8 

§  411.    Corporations 

No  foreign  corporation  transacting  business  in  the  state,  which  shall 
fail  to  comply  with  the  provisions  of  Article  10,  chap.  15,  Rev.  Laws 
1910,  "can  maintain  any  suit  or  action,  either  legal  or  equitable,  in  any 
of  the  courts  of  this  State,  upon  any  demand,  whether  arising  out  of 
contract  or  tort."  *° 

A  foreign  corporation  engaged  in  interstate  commerce  may  sue 
on  a  contract  of  employment  entered  into  with  a  citizen  of  Okla- 
homa, though  it  has  not  filed  a  copy  of  its  articles  of  incorporation, 
or  appointed  a  service  agent  in  the  state,  the  appointment  of  an 
agent  not  constituting  doing  business  in  the  state.41 

Where  a  national  bank  is  placed  in  voluntary  liquidation  in 
charge  of  liquidating  agent,  it  is  capable  of  suing  and  being  sued  in 
its  corporate  capacity,  until  its  affairs  are  settled.42 

§  412.    In  particular  cases 

A  principal  may  maintain  in  his  own  name  an  action  upon  a  writ- 
ten contract  made  in  the  name  of  the  agent.43 

An  agent,  who  purchases  a  note  with  his  principal's  money  and 
has  it  indorsed  to  himself,  may  sue  thereon  in  his  own  name.44 

Where  a  building  contractor's  bond  provided  security  for  per- 
sons furnishing  material  or  labor  without  regard  to  whether  the 
claims  were  a  lien  on  the  building,  one  who  furnished  cement  to  be 
used  in  building  could  maintain  a  suit  on  the  bond.45 

A  person  suing  to  abate  a  nuisance  must  bring  himself  within  the 
statute  authorizing  the  suit.4* 

40  Rev.  Laws  1910,  §  1341. 

41  Kibby  v.  Cubic,  Heimann  &  Co.,  137  P.  352,  41  Okl.  116. 

A  foreign  corporation  which  had  not  complied  with  Rev.  Laws  1910,  §§ 
1335,  1336,  held  not  entitled  to  sue  on  any  demand,  whether  arising  out  of 
contract  or  tort.  Goodner  Krumm  Co.  v.  J.  L.  Owens  Mfg.  Co.,  51  Okl.  376, 
152  P.  86. 

That  plaintiff  was  a  foreign  corporation,  and  had  not  complied  with  the 
statute,  by  filing  a  copy  of  its  charter,  etc.,  held  not  to  constitute  a  defense 
in  an  action  on  notes.  Citizens'  Life  Ins.  Co.  v.  Owen,  139  P.  516,  40  Okl.  446. 

42  Oklahoma  City  Nat.  Bank  v.  Ezzard,  58  Okl.  251,  159  P.  267,  L.  R.  A. 
1918A,  411. 

43  Choate  v.  Stander,  61  Okl.  148,  160  P.  737 ;    Schmucker  v.  Higgins-Rob- 
erts  Grain  Co.,  116  P.  184,  28  Okl.  721. 

44  Routh  v.  Kostachek,  81  P.  429,  15  Okl.  234. 

45  Crudup  v.  Oklahoma  Portland  Cement  Co.,  56  Okl.  786,  156  P.  899. 

46  Wilson's  Rev.  &  Ann.    St.  1903,  c.   13,  art.   10,   §   134,  provides  that  it 
shall  be  unlawful  to  maintain  a  slaughterhouse  within  certain  distances  of 
lands  platted  into  lots  for  residence  purposes.     Section  136  provides  that  the 
maintaining  of  any  slaughterhouse  in  violation  of  the  act  shall  be  a  nuisance, 

(274) 


Art.  2)  PLAINTIFF  §  412 

A  public  nuisance  may  be  abated  by  a  civil  action  brought  by  the 
state  on  the  relation  of  the  county  attorney  of  the  county  in  which 
such  nuisance  exists.47 

The  grantor  in  a  deed  void  as  against  defendants  in  adverse  pos- 
session may  maintain  an  action  in  his  own  name  against  those  hold- 
ing adversely  and  his  grantees  to  cancel  void  deeds  to  those  in  ad- 
verse possession.48 

One  who  owns  an  equitable  title  to  real  property  and  is  in  posses- 
sion may  maintain  an  action  for  permanent  injuries  thereto.49 

and  that  any  person  owning  real  estate  within  the  lands  platted  and  set  apart 
for  residences  may  sue  to  abate  such  nuisance,  and  that  sheriffs,  constables, 
or  other  police  officers  may  make  complaint  to  abate  the  same.  Held,  that 
section  136  limits  the  persons  authorized  to  sue  to  the  owners  of  real  estate 
as  described  therein,  and  one  who  is  not  such  owner  or  officer  must  bring 
himself  within  the  provisions  of  Wilson's  Rev.  &  Ann.  St.  1903,  c.  56,  en- 
titled "Nuisance."  Weaver  v.  Kuchler,  87  P.  600,  17  Okl.  189. 

Comp.  Laws  1909,  §  966  (Wilson's  Rev.  &  Ann.  St.  1903,  §  625),  makes  it 
unlawful  to  establish  and  use  land  for  burial  purposes  which  is  less  than 
three-quarters  of  a  mile  from  land  platted  as  an  addition  to  a  city  or  town, 
wherein  lots  have  been  sold  in  good  faith  before  the  cemetery  was  located, 
or  within  such  distance  of  land  platted  into  blocks  for  sale  for  resident  pur- 
poses, wherein  lots  have  been  sold  in  good  faith  before  the  cemetery  was  lo- 
cated. Section  967  (626)  makes  such  maintenance  and  use  of  a  cemetery  a 
nuisance,  and  provides  that  any  person  owning  real  estate  within  any  such 
addition  to  a  town  or  city  or  within  the  land  platted  to  be  sold  for  resident 
purposes  may  sue  to  abate  such  nuisance  and  enjoin  its  continuance.  Held, 
that  the  last  section  limits  the  persons  authorized  to  sue  to  owners  of  lands 
described  therein,  and  another  person  seeking  relief  by  way  of  abatement  of 
the  nuisance  must  bring  himself  within  Comp.  Laws  1909,  §§  4751^1769  (Wil- 
son's Rev.  &  Ann.  St.  1903,  §§  3717-3735),  relating  to  nuisances.  Clinton  Cem- 
etery Ass'n  v.  McAttee,  111  P.  392,  27  Okl.  160,  31  L.  R.  A.  (N.  S.)  945- 

Under  Comp  Laws  1909,  §§  966,  967,  making  it  unlawful  for  any  person  to 
maintain  a  cemetery  located  less  than  three-fourths  of  a  mile  from  any  platted 
land  to  be  sold  for  residences,  where  lots  may  have  been  sold  in  good  faith 
before  the  cemetery  was  located,  and  the  facts  show  that  plaintiff  had  pur- 
chased in  good  faith  lots  lying  within  such  platted  lands,  he  is  entitled  to  a 
perpetual  injunction .  against  parties  maintaining  such  cemetery.  Fursten- 
burg  v.  Brissey,  115  P.  465,  28  Okl.  591. 

47  Balch  v.  State  (Okl.)  164  P.  776. 

An  action  may  be  maintained  in  the  name  of  the  territory  under  the  direct 
provisions  of  Wilson's  St.  1903,  §  4440,  to  enjoin  and  suppress  the  keeping 
and  maintenance  of  a  common  nuisance.  Reaves  v.  Territory,  74  P.  951,  13 
Okl.  396. 

48  Burckhalter  v.  Vann,  59  Okl.  114,  157  P.  1148. 

49  Foster  Lumber  Co.  v.  Arkansas  Valley  &  W.  Ry.  Co.,  95  P.  224,  20  Okl. 
583,  30  L.  R.  A.  (X.  S.)  231,  judgment  affirmed  on  rehearing  100  P.  1110,  20 
Okl.  583,  30  L.  R.  A.   (N.  S.)   231. 

(275) 


§  413  PARTIES  (Ch.  8 

§  413.    Creditors 

The  presumption  of  invalidity  of  a  transfer  of  merchandise  in 
bulk  may  be  taken  advantage  of  by  a  creditor  of  the  transferrer, 
though  his  debt  existed  before  the  transferrer  acquired  the  stock, 
and  though  none  of  the  consideration  for  the  debt  went  into  the 
stock.50 

A  voluntary  conveyance  is  good  as  against  a  subsequent  creditor 
when  not  made  with  fraudulent  intent  to  incur  the  debt,  and  where 
the  creditor  has  not  extended  credit  on  faith  of  the  grantor's  owner- 
ship of  the  particular  property  conveyed.51 

A  subsequent  creditor,  who  extends  credit  after  actual  or  con- 
structive notice  of  a  fraudulent  conveyance,  cannot  attack  same.52 

A  person  having  a  claim  growing  out  of  a  tort  independent  of  con- 
tract is  a  "creditor,"  so  as  to  entitle  him  to  have  canceled  and  set 
aside  a  conveyance  of  real  estate  made  to  defraud  creditors.53 

A  direct  action  cannot'be  maintained  against  the  purchaser  by  a 
creditor  of  one  who  has  sold  his  entire  stock  of  goods  without  com- 
plying with  the  bulk  sales  law.54 

To  enable  a  creditor  to  assail  the  validity  of  a  chattel  mortgage 
executed  by  his  debtor,  he  must  not  only  obtain  a  judgment,  but 
also  a  valid  execution  against  the  property  of  the  debtor.55 

Where  a  mortgagee  of  chattels  to  enforce  its  lien  seizes  the  mort- 
gaged chattels  in  the  hands  of  a  third  person,  claiming  to  be  the 
owner,  and  such  third  person  sues  to  recover  their  value,  and  the 
mortgagee  defends  on  the  ground  that  the  mortgagor  made  a  fraud- 
ulent transfer  to  such  third  party  and  executed  the  mortgage,  but 
there  was  no  change  of  possession,  such  mortgagee  will  be  treated 
as  an  incumbrancer,  and  not  as  a  creditor  of  the  mortgagor,  and 
must  show  that  it  became  an  incumbrancer  in  good  faith  subsequent 
to  the  fraudulent  transfer.66 

80  Galbraith  v.  Oklahoma  State  Bank,  130  P.  541,  36  Okl.  807. 
61  Van  Arsdale  v.  Findley,  132  P.  135,  37  Okl.  425. 
82  Rauh  v.  Morris,  137  P.  1174,  40  Okl.  288. 

53  Shelby  v.  Ziegler,  98  P.  989,  22  Okl.  799. 

54  Rogers'  Milling  Co.  v.  Goff,  Gamble  &  Wright  Co.,  46  Okl.  339,  148  P. 
1029. 

88  Chandler  v.  Colcord,  32  P.  330,  1  Okl.  260. 

«•  First  Nat.  Bank  v.  Yeoman,  78  P.  388,  14  Okl.  626. 

(276) 


Art.  2)  PLAINTIFF  §§  414-415 

§  414.    Stockholders'  suit 

In  an  action  by  corporation  upon  a  claim  where  a  stockholder 
had  no  interest  in  the  subject-matter  of  the  suit,  the  corporation 
was  the  only  proper  party  plaintiff." 

Where  a  corporation  has  ceased  to  do  business  and  stock  is  own- 
ed exclusively  by  two,  and  the  majority  stockholder  in  charge  of 
its  property  and  affairs  has  converted  all  assets  to  his  own  use,  the 
minority  stockholder  can  maintain  suit  against  him,  where  corpora- 
tion is  made  a  party  defendant,  and  obtain  a  judgment  against  ma- 
jority stockholder  for  aliquot  part  of  funds  due  corporation.58 

Where  corporate  stock  is  held  by  assignment  and  delivery  as  se- 
curity for  a  debt,  and  the  assignor,  being  the. president  of  the  cor- 
poration procures  a  reissue  of  such  stock  to  himself  and  assigns  the 
reissued  stock  to  a  third  person,  and  by  the  vote  of  such  stock  the 
corporation  is  reorganized  under  a  different  name,  and  the  property 
and  franchise  rights  af  e  sought  to  be  invested  into  such  reorganized 
company,  the  bona  fide  holder  of  such  stock  is  not  required  to  reduce 
his  demand  against  his  assignor  to  judgment  before  he  may  lawful- 
ly sue  to  have  the  original  company  reinvested  with  its  corporate 
and  franchise  rights.58 

§  415.    Insurance 

Under  a  "standard"  mortgage  clause  in  a  fire  policy  providing 
that  insurance  shall  not  be  invalidated  as  to  the  mortgagee  by  any 
act  or  neglect  of  the  mortgagor,  the  mortgagee  may  maintain  a  suit 
in  his  own  name,  and  the  cause  of  action  cannot  be  defeated  by  any 
act  or  neglect  of  the  mortgagor.60 

Where  the  mortgage  debt  was  less  than  the  amount  due  on  the 

67  Burke  Grain  Co.  v.  Stinchcomb  (Okl.)  173  P.  204. 

58  Dill  v.  Johnston  (Okl.)  179  P.  608.  In  suit  by  the  minority  stockholder 
against  the  majority  stockholder  where  corporation  has  permitted  majority 
stockholder  to  convert  all  its  property  to  his  own  use,  court  may  enter  judg- 
ment directly  in  favor  of  minority  stockholder  for  his  aliquot  part,  without 
appointing  a  receiver  or  rendering  judgment  for  corporation  against  majority 
stockholder.  Id.  In  suit  by  the  minority  stockholder  for  a  division  of  cor- 
poration's assets  after  their  conversion  by  the1  majority  stockholder  to  his 
own  use  and  after  corporation  had  ceased  to  do  business,  evidence  held  suffi- 
cient to  sustain  the  findings  of  the  referee  and  judgment  of  court  thereon  in 
favor  of  the  minority  stockholder.  Id. 

69  First  Nat.  Bank  v.  Stribling,  86  P.  512,  16  Okl.  41. 

60  Fidelity-Phenix  Fire  Ins.  Co.  v.  Cleveland,  57  Okl.  237,  156  P.  638, 

(277) 


§§  415-416  PARTIES  (Ch.8 

insurance  policy,  the  insured  could  sue  on  the  policy  in  her  own 
name  though  a  mortgage  clause  was  attached  to  the  policy.61 

Where  the  insured  conveyed  property  covered  by  the  policy  by 
a  contract  making  the  loss  payable  to  the  insured  as  its  interest 
might  appear,  and  the  property  was  destroyed  before  the  policy  was 
assigned,  the  purchaser  was  not  the  owner  with  the  right  of  ac- 
tion thereon.62 

§  416.     Taxpayers — Injunction 

An  injunction  will  not  lie  at  the  suit  of  a  private  citizen  to  protect 
public  interests.63 

The  right  to  maintain  a  taxpayer's  suit  is  determined  by  statute 
in  many  cases.64 

Where  the  bridge  over  a  creek  crossed  by  a  city  street  is  allowed 
to  remain  in  a  condition  not  open  for  traffic,  the  owner  of  a  tract 
on  one  side  of  the  street  and  both  sides  of  the  creek  sustains  a  spe- 
cial injury,  and  may  maintain  an  action  for  mandatory  injunction 
against  those  responsible  for  the  condition,  though  such  action  can- 
not be  maintained  by  one  owning  a  tract  on  a  cross  street  opposite 
the  termination  of  a  street.65 

A  taxpayer  has  no  such  interest  in  a  suit  to  enjoin  the  holding 
of  an  election  to  recall  a  mayor  as  will  entitle  him  to  prosecute  such 
suit.06 

«i  Liverpool  &  London  &  Globe  Ins.  Co.  v.  Cargill,  44  Okl.  735,  145  P.  1134. 
02  Springfield  Fire  &  Marine  Ins.  Co.  v.  E.  B.  Cockrell  Holding  Co.   (Okl.) 
169  P.  1060. 

63  Ruthstrom  v.  Peterson,  83  P.  825,  72  Kan.  679. 

64  An  action  may  be  maintained  on  relation  of  resident  taxpayers  against 
city  officers  who  have  allowed  and  paid  claim  pursuant  to  an  unlawful  or 
fraudulent  contract,  and  against  the  person  to  whom  the  money  is  paid,  to 
recover  double  such  amount.     State  v.  Oklahoma  City  (Okl.)  168  P.  227. 

Where  city  after  written  demand  of  ten  resident  taxpayers  neglects  to  sue 
to  recover  money  unlawfully  paid  by  its  officers;  to  railroad,  any  resident 
taxpayer  may  sue  in  the  name  of  the  state  for  the  penalty ;  one-half  of  recov- 
ery going  to  plaintiff  as  a  reward,  and  remainder  to  city.  State  v.  City  of 
Muskogee  (Okl.)  172  P.  796.  When  city  neglects  to  sue  for  money  unlawfully 
paid  out  by  city  officials  after  written  demand  by  resident  taxpayers,  a  tax- 
payer who  sues  to  recover  penalty  under  Rev.  Laws  1910,  §§  6777,  6778,  has 
interest  in  cause  of  action  not  affected  by  city's  subsequent  suit.  Id.  Sure- 
ties on  official  bonds  of  city  officials  sued  by  resident  taxpayers  to  recover 
penalty  prescribed  by  Rev.  Laws  1910,  §§  6777,  6778,  for  misappropriation  of 
moneys  not  being  liable  for  such  penalty,  are  not  proper  parties  therein.  Id. 

es  Bissey  v.  City  of  Marion,  104  Kan.  311,  178  P.  611. 

66  City  Council  of  City  of  McAlester  v.  Milwee,  122  P.  173,  31  Okl.  620,  40 
L.  R.  A.  (N.  S.)  576. 

(278) 


Art.  2)  PLAINTIFF  §  416 

In  the  absence  of  any  statute  so  authorizing,  a  county  attorney 
cannot  sue  in  his  official  name  to  enjoin  issuance  of  warrants  for 
construction  of  bridges  under  a  void  contract.67 

A  petition  to  enjoin  the  action  of  the  state  engineer  and  an  ap- 
plicant for  water  rights  is  not  subject  to  the  charge  of  misjoinder 
of  parties  because  there  are  joined  therein  all  the  parties  claim- 
ing a  right  to  the  water  along  with  the  state  engineer,  and  the 
relief  asked  against  him  is  different  from  that  asked  against  his 
codefendant.68 

A  final  injunction  will  not  be  granted,  in  the  absence  of  a  neces- 
sary and  indispensable  party  to  the  action;  and,  until  all  those 
whose  legal  rights  are  to  be  directly  affected  by  a  permanent  injunc- 
tion are  made  parties  to  the  action,  a  perpetual  injunction  is  rightly 
refused.69 

Where  the  record  shows  that  defendants  are  only  nominal  parties, 
and  that  the  real  parties  in  interest  have  not  been  brought  into 
court,  and  the  relief  sought  would  bar  the  absent  parties  from  their 
day  in  court,  the  injunction  should  be  denied,  although  the  defend- 
ants before  the  court  do  not  raise  the  question  of  a  defect  of  parties, 
either  by  demurrer  or  answer.70 

«7  Dolezal  v.  Postick,  139  P.  964,  41  Okl.  743.  Under  St.  1893,  §§  1646,  1648, 
1649,  the  territory  of  Oklahoma  had  sufficient  interest  to  enable  it  to  enjoin 
county  officers  from  unlawfully  expending  county  money.  Id.  A  county 
officer,  prior  to  statehood,  was  authorized  to  sue  in  the  name  of  the  terri- 
tory to  enjoin  the  county  clerk  from  issuing  warrants  for  the  misapplication 
of  county  funds.  Id. 

68  Gay  v.  Hicks,  124  P.  1077,  33  Okl.  675;    Same  v.  Wallace,  124  P.  1082, 
33  Okl.  687. 

69  Jeffries-Ba  Som  v.  Nation,  65  P.  226,  63  Kan.  247. 

In  an  action  to  perpetually  enjoin  a  city  and  its  officers  and  certain  county 
officers  from  levying  or  collecting  any  taxes  to  pay  interest  on  certain  city 
bonds,  and  to  have  the  bonds  declared  null  and  void,  the  bondholders  are  nec- 
essary parties,  and  the  action  cannot  be  maintained  without  making  them 
parties.  City  of  Anthony  v.  State,  30  P.  488,  49  Kan.  246. 

The  board  of  railroad  commissioners,  under  Laws  1887,  c.  184,  granted  a 
railroad  company  the  right  to  cross  the  roads  of  two  other  companies,  and 
fixed  the  manner  of  crossing,  and  the  compensation  to  be  paid  by  the  cross- 
ing company.  From  this  order  no  appeal  was  taken.  Four  months  later,  and 
before  the  crossing  was  made,  the  companies  over  whose  roads  the  crossing 
was  allowed  applied  to  the  board  of  railroad  commissioners  for  a  rehearing, 
and  to  se-t  aside  the  order  allowing  the  crossing.  Held,  on  application  by  the 
crossing  company  for  an  injunction  to  restrain  the  board  from  granting  such 
rehearing,  that  the  railroad  companies  which  applied  for  the  rehearing  were 
necessary  parties.  Union  Terminal  R.  Co.  v.  Board  of  Railroad  Com'rs.,  35 
P.  224,  52  Kan.  680. 

70  Walker  v.  Cambern,  47  P.  980,  5  Kan.  App.  545. 

(279) 


§  417  PARTIES  (Ch.  8 

§  417.     Assignee  and  assignor 

"In  the  case  of  an  assignment  of  a  thing  in  action,  the  action  of 
the  assignee  shall  be  without  prejudice  to  any  set-off  or  other  de- 
fense now  allowed;  but  this  section  shall  not  apply  to  negotiable 
bonds,  promissory  notes  or  bills  of  exchange,  transferred  in  good 
faith  and  upon  good  consideration,  before  due."  71 

One  to  whom  a  contract  right  has  been  transferred  may  maintain 
an  action  thereon,  though  he  has  no  beneficial  interest  therein.72 

The  assignee  of  an  account  may  maintain  action  thereon,  although 
the  assignor  is  the  party  beneficially  interested,73  and  it  is  immaterial 
to  the  debtor  whether  the  account  was  given  or  sold  to  the  assignee.74 

Where  a  written  contract  of  sale  of  land  was  assigned  as  col- 
lateral security  for  faithful  performance  of  a  building  contract  by 
the  assignor,  the  assignee  could  sue  the  original  vendor  for  breach 
of  the  contract  of  sale,  without  making  the  assignor  a  party.76 

One  to  whom  a  claim  for  injuries  to  freight  is  assigned  is  entitled 
to  maintain  an  action  thereon ;  the  assignor  not  being  a  necessary 
party.76 

Where  the  assignee  of  a  final  foreign  judgment  which  definitely 
fixed  the  liability  of  defendants  under  an  indemnity  bond  released 
the  judgment  in  consideration  of  the  judgment  debtors  assigning 
the  bond  to  him,  the  assignee,  being  absolute  owner  of  the  bond, 
could  sue  thereon.77 

The  assignee  of  the  payee  of  a  note  is  entitled  to  sue  thereon, 
though  the  payee  was  designated  as  guardian  in  the  face  of  the  note.78 

Where  a*  note  in  aid  of  railroad  construction  was  delivered  to  a 
construction  company  and  the  railroad  was  duly  completed  and 
the  receiver  of  the  construction  company  assigned  the  note  to  the 
receiver  of  the  railway  company,  and  the  assets  of  the  railway  were 
sold  to  a  third  party,  who  delivered  the  note  to  the  plaintiff  rail- 
road, plaintiff  could  maintain  an  action  thereon.79 

71  Rev.  Laws  1910,  §  4682. 

72  Rullman  v.  Rullman,  106  P.  52,  81  Kan.  521. 

78  Hull  v.  Massachusetts  Bonding  &  Ins.  Co.,  120  P.  544,  86  Kan.  342. 

74  Krapp  v.  Eldridge,  5  P.  372,  33  Kan.  106. 

75  Marker  v.  Gillam,  54  Okl.  766,  154  P.  351. 

76  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Bankers'  Nat.  Bank,  122  P.  499,  32  Okl.  290. 

77  McFarlan  v  Adair,  46  Okl.  46,  148  P.  138. 

7  s  Bank  of  Welch  v.  Cabell,  52  Okl.  190,  152  P.  844. 

79  Purcell  Mill  &  Elevator  Co.  v.  Canadian  Valley  Const.  Co.,  58  Okl.  629, 
160  P.  485. 

(280) 


Art.  2)  PLAINTIFF  §§  417-419 

A  claim  for  money  found  to  be  due  by  the  verdict  of  the  jury 
in  an  action  for  the  conversion  of  personalty  may  be  assigned  to 
a  third  person,  so  as  'to  give  the  assignee  the  right  to  recover  the 
same.80 

§  418.     Persons  not  personally  interested 

"An  executor,  administrator,  guardian,  trustee  of  an  express 
trust,  a  person  with  whom,  or  in  whose  name,  a  contract  is  made 
for  the  benefit  of  another,  or  a  person  expressly  authorized  by  stat- 
ute, may  bring  an  action  without  joining  with  him  the  person  for 
whose  benefit  it  is  prosecuted.  Officers  may  sue  and  be  sued  in  such 
name  as  is  authorized  by  law,  and  official  bonds  may  be  sued  upon 
in  the  same  way."  81 

A  trustee  of  personal  property  for  sale  and  to  apply  proceeds  to 
payment  of  debts  can  maintain  an  action  for  the  conversion  of  the 
property.82 

An  action  on  a  note  is  properly  brought  by  the  party  holding  the 
legal  title  to  same,  though  there  are  other  parties  beneficially  in- 
terested in  the  note.83 

Where,  in  an  action  on  a  note  by  an  assignee  against  the  maker, 
a  third  party  intervenes,  charging  fraud  of  creditors  and  seeking 
to  recover  money  alleged  to  be  theirs,  such  creditors  are  necessary 
parties  to  the  proceedings.84 

•     An  action  may  be  maintained  on  a  contract  for  the  benefit  of  a 
third  party  by  the  person  in  whose  name  the  contract  was  made.85 

The  assignee  of  a  judgment,  in  whom  is  vested  the  legal  title, 
and  who  is  authorized  to  receive  the  amount  of  it,  may  sue  on  the 
supersedeas  bond  given  upon  an  appeal  from  such  judgment,  with- 
out joining  those  to  whom,  by  collateral  agreement  between  him 
and  his  assignor,  the  proceeds  of  the  judgment  are  to  be  paid.86 

§  419.    Guardian 

The  guardian  of  an  insane  woman  cannot  bring  an  action 
against  her  husband  for  divorce  or  for  alimony.87 

80  Noble  v.  Hunter,  43  P.  994,  2  Kan.  App.  538. 

81  Rev.  Laws  1910,  §  4683. 

82  First  Nat.  Bank  v.  Hinkle  (Okl.)  162  P.  1092. 
88  Chaffee  v.  Shartel,  46  Okl.  199,  148  P.  686. 

8*  Goodrich  v.  Williamson,  63  P.  974,  10  Okl.  588,  617. 

85  Shellberg  v.  McMahon,  157  P.  268,  98  Kan.  46. 

86  Walburn  v.  Chenault,  23  P.  657,  43  Kan.  352. 

87  Birdzell  v.  Birdzell,  6  P.  561,  33  Kan.  433,  52  Am.  Rep.  539,  rehearing  de- 
nied 11  P.  907,  35  Kan.  638. 

(281) 


§§  419-421  PARTIES  (Ch.  8 

The  duly  appointed  acting  guardian  of  minors  may  in  her  own 
name  maintain  an  action  for  property  of  her  wards  without  joining 
them  as  parties.88 

§  420.     Infants— Wards 

"The  action  of  an  infant  must  be  brought  by  his  guardian  or,  next 
friend.  When  the  action  is  brought  by  his  next  friend,  the  court 
has  power  to  dismiss  it,  if  it  is  not  for  the  benefit  of  the  infant,  or 
substitute  the  guardian  of  thp  infant,  or  any  person  as  the  next 
friend."  89 

Where  the  guardian  of  an  infant  is  removed  for  failure  to  account, 
and  no  successor  is  appointed,  an  action  on  the  bond  for  the  bene- 
fit of  the  infant  may  be  brought  by  the  next  friend.90 

A  minor  may  sue  by  his  legal  guardian  on  the  official  bond  of  a 
former  guardian,  though  the  bond  executed  prior  to  statehood  was 
made  payable  to  the  United  States.91 

Where  guardian  dies  without  settlement  in  the  county  court, 
the  former  wards  may  maintain  an  action  in  the  superior  or  district 
court  against  his  personal  representatives  and  sureties  on  his  bond 
as  guardian  for  such  accounting  and  settlement.92 

§  421.     Tenants  in  common 

One  tenant  in  common  may  sue  to  recover  realty  from  a  third 
person;  but  his  recovery  is  limited  to  such  interest  as  he  proves 
title  in  himself  superior  to  that  of  defendants.93 

88  Kerr  v.  McKinney  (Okl.)  170  P.  685. 
8  9  Rev.  Laws  1910,  §  4686. 

90  First  State  Bank  of  Vinita  v.  Fay,  60  Okl.  132,  159  P.  505;   Hill  v.  Reed, 
103  P.  855,  23  Okl.  616. 

A  minor  may  by  his  legal  guardian  sue  on  a  former  guardian's  official  bond. 
Lyons  v.  Fulsom,  54  Okl.  84,  153  P.  868. 

Where  guardian  dies  without  accounting  and  settlement,  his  former  wards 
may  maintain  action  against  his  personal  representatives  and  sureties  on  his 
bond  for  such  accounting  and  settlement.  Donnell  v.  Dansby,  58  Okl.  165,  159 
P.  317.  Where  father  who  had  been  appointed  guardian  made  no  charge  for 
expenditures  in  behalf  of  minors,  and  obtained  no  authority  from  county 
court  therefor,  no  credits  can  be  allowed  after  his  death  in  action  against 
sureties  on  his  bond.  Id. 

91  Title  Guaranty  &  Surety  Co.  v.  Slinker,  128  P.  696,  35  Okl.  128;   Id.,  128 
P.  698,  35  Okl.  153. 

92  Title  Guaranty  &  Surety  Co.  of  Scranton,  Pa.,  v.  Burton   (Okl.)   170  P. 
1170 ;   Asher  v.  Stull,  61  Okl.  320,  161  P.  808. 

&s  Moppin  v.  Norton,  137  P.  1182,  40  Okl.  284,  Ann.  Cas.  1915D,  1042. 

(282) 


Art.  2)  PLAINTIFF  §§  421-423 

A  joint  tenant  of  land,  can  maintain  ejectment  against  his  co- 
tenant,  who  has  ousted  him  or  denied  his  interest  in  such  land.94 

§  422.     Government  and  governmental  agencies 

The  United  States  may  sue  to  cancel  a  patent  for  fraud,  where  the 
government  is  the  only  part  interested,  where  the  land  is  not  sub- 
ject to  patent,  but  is  erroneously  patented,  and  where  the  land, 
though  subject  to  patent,  is  patented  to  the  wrong  person,  either 
through  fraud,  mistake,  or  inadvertence.95 

The  United  States,  as  plaintiff,  has  no  superior  rights,  but  is 
controlled  by  the  same  principles  of  law  and  rules  of  practice  as 
a  citizen.96 

The  right  of  county  to  sue  and  be  sued  is  purely  statutory,  and 
the  mode  prescribed  by  statute  for  prosecuting  actions  must  be 
strictly  followed.97 

Where  the  public  are  interested,  and  it  is  necessary  to  bring  the 
action  in  the  name  of  the  state,  such  action  can  only  be  brought 
at  the  instance  of  the  public  officer  authorized  by  statute.98 

An  action  cannot  be  commenced  against  a  delinquent  officer,  ex- 
cept on  order  of  the  county  commissioners,  and  the  county  attor- 
ney cannot  appeal  from  a  judgment  against  the  county  in  such  case 
without  the  consent  and  against  the  wishes  of  the  commissioners.98 

§  423.     Action  for  death 

The  statutes  giving  an  action  for  wrongful  death,  contemplate 
but  one  action,  and  the  same  death  cannot  be  sued  for  in  separate 
actions  by  the  various  individuals  sustaining  damages  thereby.1 

If  death  results  from  personal  injuries,  an  action  cannot  be  main- 

94  Jameson  v.  Goodwin  (Okl.)  170  P.  241. 

95  Lynch  v.  United  States,  73  P.  1095,  13  Okl.  142. 

96  Lynch  v.  United  States,  73  P.  1095,  13  Okl.  142. 

07  Smith  v.  State,  13  Okl.  Cr.  R.  619,  166  P.  463;  Muskogee  County  v.  Lan- 
ning  &  McRoberts,  51  Okl.  343,  151  P.  1054 ;  Showers  v.  Caddo  County,  77  P. 
189,  14  Okl.  157. 

98  Territory  v.  De  Wolfe,  74  P.  98,  13  Okl.  454,  writ  of  error  dismissed  25 
S.  Ct.  794,  196  U.  S.  643,  49  L.  Ed-  632.    The  bare  allegation  in  a  petition  that 
territorial  officers  have  refused  to  bring  the  action  is  not  sufficient  to  au- 
thorize the  use  of  the  name  of  the  territory  by  a  private  individual.    Id. 

99  Kingfisher  County  v.  Graham,  139  P.  1149,  40  Okl.  571 ;    Same  v.  Down- 
ing, 139  P.  1153,  40  Okl.  580;    Same  v.  Miles,  139  P.  1153,  40  Okl.  581;  Same 
v.  Woodwor'th,  139  P.  1153,  40  Okl.  581 ;    Same  v.  Bowman,  139  P.  1153,  40 
Okl.  582 ;    Same  v.  Lindsey,  140  P.  434,  40  Okl.  607. 

1  Cowan  v.  Atchison,  T.  &  S.  F.  Ry.  Co-,  168  P.  1015,  L.  R.  A.  1918B,  1141. 

(283) 


§  423  PARTIES  (Ch.  8 

tained  by  the  personal  representative  of  the  deceased  for  the  ben- 
efit of  the  estate,  but  may  be  brought  for  the  benefit  of  the  next 
of  kin.2 

An  action  for  wrongful  death  can  be  brought  only  by  the  par- 
ties designated  in  the  statute.8  The  statute  contemplates  but  one 
action,  and  the  same  death  cannot  be  sued  for  in  separate  actions 
by  the  various  individuals  sustaining  damage  thereby.4 

The  words  "next  of  kin"  as  used  in  the  statute  relating  to  wrong- 
ful death  mean  those  who  inherit  from  the  deceased  under  the 
statutes  of  descent  and  distribution.5 

2  Martin  v.  Missouri  Pac.  Ry.  Co.,  49  P.  605,  58  Kan.  475. 

3  Shawnee  Gas  &  Electric  Co.  v.  Motesenbocker,  138  P.  790,  41  Okl.  454. 

4  Shawnee  Gas  &  Electric  Co.  v.  Motesenbocker,  138  P.  790,  41  Okl.  454. 

5  Bolinger  v.  Beacham,  106  P.  1094,  81  Kan.  746 ;    Shawnee  Gas  &  Electric 
Co.  v.  Motesenbocker,  138  P.  790,  41  Okl.  454;    Atchison,  T.  &  S.  F.  Ry.  Co. 
v.  Ryan,. 64  P.  603,  62  Kan.  682. 

Where  estate  of  deceased  adult,  leaving  &.  father  and  sister  surviving,  was 
not  administered  on,  father  is  "next  of  kin,"  within  Rev.  Laws  1910,  §  8418, 
and  may  maintain  an  action  for  his  wrongful  death,  where  deceased  contrib- 
uted to  his  support.  Whitehead  Coal  Mining  Co.  v.  Pinkston  (Okl.)  175  P. 
364. 

Where  a  person  for  whose  death  action  is  brought  left  neither  widow  nor 
children  nor  father  surviving  him,  but  left  a  mother  and  brothers  and  sis- 
ters, the  mother,  brothers  and  sisters  are  "next  of  kin"  within  the  meaning 
of  the  statute  making  the  "next  of  kin"  necessary  parties  to  the  action. 
Motsenbocker  v.  Shawnee  Gas  &  Electric  Co.,  49  Okl.  304,  152  P.  82,  L.  R.  A. 
1916B,  910. 

Where  a  minor  leaves  no  issue,  or  wife,  but  leaves  both  father  and  mother, 
they  are  his  only  heirs  and  next  of  kin,  who  sue  for  his  death  under  Rev. 
Laws  1910,  §§  5281,  5282.  Cowan  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  168  P.  1015, 
L.  R.  A.  1918B,  1141. 

The  surviving  husband  is,  within  Civ.  Code,  §  422,  next  of  kin  to  his  wife 
and  entitled  to  recover  damages  for  her  wrongful  death.  Atchison,  T.  &  S. 
F.  Ry.  Co.  v.  Townsend,  81  P.  205,  71  Kan.  524,  6  Ann.  Gas.  191. 

Under  Code  Civ.  Proc.  §  422,  nonresident  alien  parents,  next  of  kin  of  a 
minor  son  whose  death  was  wrongfully  caused  by  the  negligence  of  another, 
may  maintain  an  action  to  recover  for  his  death.  Atchison,  T.  &  S-  F.  Ry. 
Co.  v.  Fajardo,  86  P.  301,  74  Kan.  314,  6  L.  R.  A.  (N.  S.)  681. 

Where  a  deceased  child  leaves  no  issue,  'husband,  or  wife,  but  leaves  father 
and  mother,  brothers  and  sisters  of  deceased  should  not  be  joined  with  the 
father  and  mother  in  an  action  for  wrongful  death.  Kali  Inla  Coal  Co.  v. 
Ghinelli,  55  Okl.  289,  155  P.  606. 

Where  no  personal  representative  is  appointed,  and  the  deceased  left  no 
widow,  all  the  next  of  kin  must  join  in  the  action.  Shawnee  Gas  &  Electric 
Co.  v.  Motesenbocker,  138  P.  790,  41  Okl.  454.  Where  the  person  for  whose 
death  suit  is  brought  left  neither  widow  nor  children  nor  father  surviving 
him,  but  left  a  mother  and  brothers  and  sisters,  the  brothers  and  sisters  are 


Art.  2)  PLAINTIFF  §  423 

No  recovery  can  be  had  by  a  parent  for  the  death  of  a  child  ex- 
cept in  virtue  of  the  statute.6 

A  parent,  to  recover  as  next  of  kin  for  wrongful  death  of  a  minor 
child,  a  resident  of  the  state,  must  prove  that  no  personal  represen- 
tative has  been  appointed.7 

An  action  for  the  wrongful  death  of  a  spouse  may  be  maintained 
by  the  surviving  spouse  for  the  benefit  of  herself  or  himself  and 
minor  children,  where  there  has  been  no  administration  of  dece- 
dent's estate.8 

The  right  of  recovery  extends  to  all  children  of  deceased,  re- 
gardless of  their  ages ;  but  the  recovery  must  be  based  on  the  rea- 
sonable expectancy  of  pecuniary  benefit  of  which  they  were  de- 

"next  of  kin"  within  the  meaning  of  the  statute,  and  must  be  joined  in  the 
action,  though  the  mother  alone  has  sustained  any  loss.    Id. 

•  Siegrist  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  137  P.  975,  91  Kan.  260. 

7  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Judah,  62  P.  711,  10  Kan.  App.  577. 

8  Big  Jack  Mining  Co.  v.  Parkinson,  137  P.  678,  41  Okl.  125. 

Where  no  personal  representative  has  been  appointed,  an  action  for  wrong- 
ful death  may  be  maintained  by  the  widow.  Mott  v.  Long,  132  P.  998,  90 
Kan.  110. 

Nonappointment  of  a  personal  representative  of  decedent  is  a  condition 
precedent  to  the  right  of  the  widow  to  bring  an  action  for  wrongful  death. 
Chicago  R.  I.  &  P.  Ry.  Co.  v.  Brooks,  57  Okl.  163,  156  P.  362. 

An  action  on  a  cause  arising  in  state  for  death  of  plaintiff's  husband  resi- 
dent in  the  state,  from  defendant's  wrongful  act  or  negligence  of  another, 
where  no  personal  representative  had  been  appointed,  was  properly  brought 
by  widow  in  her  own  name-  Blunt  v.  Chicago,  R.  I.  &  P.  R.  Co.  (Okl.)  173 
P.  656. 

Under  Comp.  Laws  1909,  §§  5945,  5946,  held  that,  where  the  petition  in  an 
action  for  death,  failed  to  state  that  plaintiff's  husband  at  the  time  of  his 
death  was  a  nonresident  or  was  a  resident,  and  that  no  personal  representa- 
tive had  been  appointed,  it  was  demurrable.  Frederick  Cotton  Oil  &  Mfg. 
Co.  v.  Clay,  50  Okl.  123,  150  P.  451. 

A  special  administrator,  appointed  in  another  state  where  the  deceased 
left  property,  held  not  entitled  to  sue  to  recover  for  the  next  of  kin  damages 
for  the  death  of  deceased  whose  residence  and  death  were  in  the  state.  Me- 
trakos  v.  Kansas  City,  M.  &  O.  Ry.  Co.,  137  P.  953,  91  Kan.  342.  An  admin- 
istrator appointed  in  another  state  may  sue  to  recover  for  the  death  in  Kan- 
sas of  a  resident  of  such  other  state.  Id.  An  administrator  appointed  in 
another  state  cannot  proceed  under  Code  Civ.  Proc.  §  419  (Gen.  St.  1909,  § 
6014),  authorizing  recovery  for  wrongful  death  where  the  law  of  his  state 
prohibits  him  from  maintaining  an  action  there.  Id.  The  widow  of  a  non- 
resident whose  death  occurred  in  Kansas  may  recover  as  such  widow  under 
Code  Civ.  Proc.  S  419  (Gen.  St.  1909,  §  6014),  authorizing  recovery  for  wrong- 
ful death,  though  not  entitled  to  recover  as  administratrix.  Id.  Alien  par- 
ents may  recover  under  Code  Civ.  Proc.  §  419  (Gen.  St.  1909,  §  6014),  au- 
thorizing recovery  for  wrongful  death,  for  the  death  in  Kansas  of  a  minor 
son.  Id. 

(2S5) 


§§  423-424  PARTIES  (Ch.  8 

prived  by  their  father's  death.9  A  child  born  after  its  father's 
death  is  a  beneficiary,  and  entitled  to  damages  for  wrongfully  caus- 
•  ing  the  death  of  the  father.10 

An  ancillary  administrator  in  a  foreign  state  may  sue  there  for 
the  death  in  this  state  of  his  intestate,  who  resided  in  a  third  state, 
where  a  domiciliary  administrator  had  been  appointed,  but  could 
not  sue  under  the  state  laws.11 

Heirs  of  an  Italian  citizen  were  not  prohibited  by  the  treaty  with 
Italy  from  suing  for  his  wrongful  death  in  the  United  States.12 

The  widow  of  a  deceased  railway  employe  cannot  bring  in  her 
own  name  the  action  for  damages,  given  by  Act  Cong.  April  22, 
1908  (U.  S.  Comp.  St.  §  8657),  conferring  the  right  of  action  on 
the  "personal  representative,  for  the  benefit  of  the  surviving  wid- 
ow or  husband  and  children  of  such  employe."  13 

Since  the  right  of  action  for  death  is  based  entirely  on  statute, 
the  action  can  be  brought  only  in  the  name  of  the  person  to  whom 
the  right  is  given  by  statute.14 

ARTICLE  III 

DEFENDANT 

Sections 

424.  Necessary  and   proper   parties   defendant. 

425.  Receiver. 

426.  Liens. 

427.  Joinder. 

428.  Defendants  severally  liable. 

429.  Infants. 

430.  Guardian  ad  litem. 

431.  Husband  and  wife. 

432.  State  as  defendant. 

433.  Change  of  parties  and  new  parties. 

434.  Substitution— Plaintiff. 

435.  Disclaimer. 

436.  Substitution  of  judgment  creditor. 

§  424.     Necessary  and  proper  parties  defendant 

In  ejectment  involving  only  the  right  of  possession,  the  person 
in  actual  occupancy  is  always  a  necessary  party  defendant.15 

9  Pressley  v.  Incorporated  Town  of  Sallisaw,  54  Okl.  747,  154  P.  660. 

10  Herndon  v.  St.  Louis  &  S.  F.  R.  Co..  128  P.  727,  37  Okl.  256. 

11  Robinson  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  150  P.  636,  96  Kan.  137. 

12  Kali  Inla  Coal  Co.  v.  Ghinelli,  55  Okl.  289,  155  P.  606. 

13  Missouri,  K.  &  T.  Ry.  Co.  v.  Leuahan,  39  Okl.  283',  135  P.  383. 

14  Id.  1B  Mullen  v.  Carter  (Okl.)  173  P.  512. 

(286) 


An.  3)  DEFENDANT  '  §  424 

Persons  not  in  possession,  when  claiming  possessory  rights,  are 
proper,  but  not  necessary  parties  defendant.16 

Where  defendant  sets  up  a  deed  to  a  third  person  before  plain- 
tiff obtained  title  as  a  defense,  the  fact  that  plaintiff  introduces  evi- 
dence that  the  deed  was  made  to  defraud  does  not  render  such  third 
person  a  necessary  party.17 

In  an  action  brought  for  the  specific  performance  of  a  written 
contract  to  convey  real  estate,  one  to  whom  the  vendor  sold  and 
conveyed  the  legal  title,  before  the  commencement  of  the  action,  is 
a  necessary  party.18 

One  having  a  written  contract  for  the  purchase  of  real  estate 
with  a  person  having  a  similar  contract  from  the  owner  may  bring 
an  action  for  specific  performance  against  both  parties.19 

Specific  performance  may  be  compelled  by  the  purchaser  in  a 
recorded  contract  for  the  sale  of  land  against  one  purchasing  of 
his  vendor  after  the  contract  was  recorded,  without  making  the 
vendor  a  party.20 

In  an  action  for  divorce  on  the  ground  of  cruelty,  where  it  is 
alleged  that  property  has  been  fraudulently  conveyed  to  a  third 
person  to  defeat  the  collection  of  any  alimony,  and  defendant  and 
the  party  to  whom  the  conveyance  was  made  are  both  served,  the 
grantee  is  not  a  proper  party  to  a  divorce  proceeding,  and  it  is  not 
error  to  refuse  to  permit  him  to  be  heard  on  the  question  of  di- 
vorce, but  his  defense  extends  only  to  the  question  of  alimony 
and  the  validity  of  the  conveyance.21 

Where  an  Indian  allottee,  after  mortgaging  his  allotment,  con- 
veyed same  by  warranty  deed,  he  was  not  a  necessary  party  to 
proceedings  to  foreclose  the  mortgage,  when  no  personal  judgment 
was  prayed  against  him.22 

In  a  suit  to  cancel  a  patent,  every  person  having  an  interest  in 
the  land  included  in  the  patent  is  an  indispensable  party.28 

16  Mullen  v.  Carter  (Okl.)  173  P.  512. 

17  Rauer  v.  Thomas,  55  P.  285,  60  Kan.  71. 

18Atchison,  T.  &  S.  F.  R.  Co.  v.  Benton,  22  P.  698,  42  Kan.  698. 

18  Welch  v.  Mclntosh,  130  P.  641,  89  Kan.  47. 

20  Topeka  Water  Supply  Co.  v.  Root,  42  P.  715,  56  Kan.  187. 

21  Bennett  v.  Bennett,  81  P.  632,  15  Okl.  286,  70  L.  R.  A.  864. 

22  Freeman  v.  First  Nat.  Bank  of  Boynton,  44  Okl.  146,  143  P.  1165,  Ann. 
Cas.  1918A,  259. 

23  Lynch  v.  United  States,  73  P.  1095,  13  Okl.  142. 

(287) 


§§  424-426  PARTIES  (Ch.  8 

In  action  to  rescind  a  contract  for  the  purchase  of  land  and  to 
recover  advanced  payment  for  failure  of  defendant  to  convey  title, 
the  only  necessary  defendant  is  the  party  against  whom  decree  will 
operate.24 

In  an  action  to  enjoin  collection  of  special  assessments,  officers 
charged  with  their  collection  are  the  proper  parties  defendants,  and 
holders  of  certificates  or  bonds  for  payment  of  which  assessments 
are  levied  are  not  necessary  parties.25 

In  a  will  contest,  the  refusal  of  the  court  to  issue  a  citation  for 
service  on  legatees  and  devisees  residing  without  the  state  did  not 
deprive  the  court  of  jurisdiction  to  proceed  with  the  trial  as  to 
contestant  and  such  defendants  as  had  been  served  with  citation.26 

The  board  of  county  commissioners  is  not  a  necessary  party  to 
an  action  against  the  county  treasurer  or  sheriff,  or  both,  to  en- 
join the  collection  of  an  illegal  tax  or  assessment.27 

§  425.    Receiver 

Where  a  receiver  has  been  appointed  for  a  lessee  who  has  pre- 
viously entered  into  a  contract  with  the  lessor,  the  receiver  is  not 
a  necessary  or  proper  party  to  an  action  by  the  lessor  against  the 
lessee  for  a  violation  of  the  contract.28 

Where  a  receiver  is  appointed  in  the  federal  court  for  an  inter- 
state railroad,  he  may  be  made  party  defendant  to  an  action  in  the 
state  court  to  demolish  a  bridge  belonging  to  such  road  and  is 
bound  by  the  judgment  of  the  state  court.28 

§  426.     Liens 

The  original  contractor  is  a  necessary  defendant  to  an  action  by 
a  subcontractor  to  enforce  a  materialman's  lien ;  but,  if  the  return 
shows  that  service  cannot  be  had  on  the  original  contractor,  the 
subcontractor's  lien  may  be  enforced  without  obtaining  a  personal 
judgment  against  the  original  contractor.30 

24  Groves  v.  Stouder,  58  Okl.  744,  161  P.  239. 

25  City  of  Muskogee  v.  Nicholson   (Okl.)   171  P.  1102. 
28  In  re  Land's  Estate,  137  P.  246,  166  Gal.  538. 

27  Rogers  v.  Bass  &  Harbour  Co.,  47  Okl.  786,  150  P.  706. 

28  St.  Louis  &  S.  F.  R.  Co.  v.  Ravia  Granite  Ballast  Co.  (Okl.)  174  P.  252. 
29Kaw  Valley  Drainage  Dist.  of  Wyandotte  County  v.  Missouri  Pac.  Ry. 

Co.,  161  P.  937,  99  Kan.  188. 

30  New  Home  Lumber  Co.  v.  Ryal,  56  Okl.  746,  156  P.  637. 
The  original  contractor  is  an  indispensable  party  to  an  action  by  a  sub- 

(288) 


Art.  3)  DEFENDANT  §  426 

Where  a  contractor  for  the  erection  of  a  building  lets  a  subcon- 
tract for  a  portion  thereof,  and  the  subcontractor  permits  liens  to 
be  filed  against  the  building,  the  contractor  is  not  required  to  de- 
fend against  the  respective  amounts  of  such  liens,  but  it  is  the  duty 
of  the  subcontractor  and  those  claiming  liens  under  him  to  defend 
against  the  allowance  by  the  court  of  excessive  or  unjust  claims.31 

A  contractor  for  the  erection  of  a  building  who  lets  a  subcontract 
for  a  portion  thereof  may  refuse  to  pay  to  any  lien  claimant  under 
the  subcontractor  the  amount  of  his  lien  until  after  he  establishes 
the  correctness  thereof  in  court,  and  before  an  adjudication  as  to 
its  correctness  the  contractor  pays  the  same  at  his  peril.32 

Where  a  mortgagee  fails  to  make  the  mechanic's  lien  holder  par- 
ty to  foreclosure  proceeding,  a  subcontractor,  who  has  intervened 
within  one  year  from  the  time  he  filed  his  lien  statement,  may 
make  the  contractors  parties,  after  the  expiration  of  one  year,  for 
the  purpose  of  asserting^jind  foreclosing  his  lien  against  the  mort- 
gagee and  other  incumbrancers.33 

In  the  absence  of  exceptional  facts  alleged  in  the  petition,  the 
only  proper  parties  defendant  in  foreclosure  are  the  mortgagor  and 
persons  claiming  an  inferior  interest.3* 

Where  on  foreclosure  a  grantee  of  the  mortgagor  appears  and 
alleges  an  interest  in  the  property,  and  a  sale  of  one-half  of  such 
interest  to  a  grantee  named,  such  persons  and  their  grantees  are 
proper  and  necessary  parties  to  the  full  determination  of  the  ac- 
tion.35 

A  grantee  in  possession  of  the  mortgaged  premises  is  a  necessary 
party  on  foreclosure,  where  the  petition  alleges  that  the  mortga- 
gors have  conveyed  to  such  grantee.86 

A  junior  incumbrancer  is  not  a  necessary  party  to  a  suit  by  a 

contractor  or  materialman  to  foreclose  a  lien  against  the  owner's  property. 
Eberle  v.  Drennan,  136  P.  162,  40  Okl.  59,  51  L.  R.  A.  (N.  S.)    68. 

In  a  suit  on  account  by  a  subcontractor  for  materials  furnished,  the  con- 
tractor, with  all  the  lienholders,  are  indispensable  parties.  Union  Bond  & 
Investment  Co.  v.  Bernstein,  139  P.  974,  40  Okl.  527. 

31  Vandenberg  v.  P.  T.  Walton  Lumber  Co.,  92  P.  149,  19  Okl.  169. 

32  Id. 

33  Blanshard  v.  Schwartz,  54  P.  303,  7  Okl.  23. 

34  De  Watteville  v.  Sims,  44  Okl.  708,  146  P.  224. 

35  Gillett  v.  Romig,  87  P.  325,  17  Okl.  324. 

36  Page  v.  Turk,  143  P.  104*  43  Okl.  667. 

HON.PL.&  PBAC.— 19  (289) 


§§  426-427  PARTIES  (Ch.  8 

senior  mortgagee  to  foreclose  in  such  a  sense  that  his  presence  on 
the  record  is  necessary  to  a  valid  decree.37 

In  a  suit  to  foreclose  a  mortgage,  the  heir  of  an  intestate  is  not 
a  necessary  party,  and  is  precluded  by  a  decree  of  sale  against 
the  administrator.38 

Where  no  administrator  of  the  estate  of  a  deceased  mortgagor 
was  appointed,  and  a  suit  to  foreclose  was  brought  against  all  the 
heirs,  and  no  judgment  was  rendered  against  the  estate  of  the 
mortgagor,  the  decree  of  foreclosure  was  valid.39 

§  427.    Joinder 

"Any  person  may  be  made  a  defendant  who  has  or  claims  an 
interest  in  the  controversy  adverse  to  the  plaintiff,  or  who  is  a 
necessary  party  to  a  complete  determination  or  settlement  of  the 
question  involved  therein."  40 

In  actions  of  equitable  cognizance,  the  general  rule  is  that  all  par- 
ties materially  interested,  either  legally  or  beneficially,  in  subject- 
matter  of  suit  must  be  made  parties  either  as  plaintiffs  or  defend- 
ants, so  that  a  complete  decree  may  be  made  binding  upon  all  par- 
ties.41 

In  a  petition  to  enjoin  a  foreclosure  sale  under  a  mortgage  on  the 
ground  of  the  mortgagee's  breach  of  a  contract  to  make  releases  to 
purchasers  from  the  mortgagor,  joinder  of  the  sheriff  ordered  to 
make  the  sale  and  of  purchaser  from  the  mortgagor  was  not  a  misjoin- 
der  of  parties.42 

In  an  action  by  the  administrator  of  a  deceased  trustee  to  recover 
the  trust  fund,  which  was  wrongfully  mingled  by  the  trustee  with 
his  own  property,  it  is  not  necessary  to  make  all  persons  who  may 
be  interested  in  the  estate  parties.43 

In  an  action  by  the  equitable  owner  of  real  estate  to  recover  the 
legal  title  and  for  an  accounting  against  a  mortgage  company, 

37  McCredie  v.  Dubuque  Fire  &  Marine  Ins.  Co.,  63  Okl.  184,  163  P.  535. 
88  McClung  v.  Cullison,  82  P.  499,  15  Okl.  402. 

39  Brocker  v.  Stallard,  126  P.  781,  34  Okl.  612. 

40  Rev.  Laws  1910,  §  4691 ;    Haynes  v.  City  Nat.  Bank  of  Lawton,  121  P. 
182,  30  Okl.  614;    Edmondston  v.  Porter  (Okl.)   162  P.  692. 

41  Southwestern  Bell  Telephone  Co.  v.  State,  75  Okl.  42,  181  P.  487. 

42  Nelson  v.  Hoskinson,  172  P.  993,  103  Kan.  46. 

43  Hubbard  v.  Alamo  Irr.  &  Mfg.  Co.,  36  P.  1053,  37  P.  625,  53  Kan.  637. 

(290) 


Art.  3)  DEFENDANT  §§  427~428 

which  has  procured  of  the  mortgagors  the  legal  title  for  plaintiff, 
such  mortgagors  are  not  necessary  parties.44 

When  all  the  parties  who  enter  into  a  promise  receive  some  ben- 
efit from  the  consideration,  whether  past  or  present,  the  promise  is 
presumed  to  be  joint  and  several,  and  one  or  more  may  be  sued 
thereon  with  or  without  uniting  all  in  the  same  suit.45 

Though  one  of  three  defendants  against  whom  a  joint  action  is 
brought  for  damages  is  indemnified  by  one  of  the  other  defendants 
against  any  loss,  such  defendant  is  not  a  nominal,  but  is  a  substan- 
tial, party  to  the  action.40 

Where  the  loss  exceeds  the  insurance  and  the  insurer  has  paid 
the  assured,  who  refuses  to  sue  the  wrongdoer,  the  insurer  may  sue 
the  wrongdoer  in  its  own  name,  joining  assured  as  defendant  under 
proper  allegations.47 

A  constable  a^nd  the  sureties  on  his  official  bond,  which  is  joint 
and  several,  may  be  joined  as  defendants  in  an  action  for  a  breach 
of  the  condition  of  the  bond.48 

§  428.     Defendants  severally  liable 

"Persons  severally  liable  upon  the  same  obligation  or  instrument, 
including  the  parties  to  bills  of  exchange  and  promissory  notes,  and 
indorsers  and  guarantors,  may  all  or  any  of  them  be  included  in  the 
same  action,  at  the  option  of  the  plaintiff."  49 

Where  a  guardian,  besides  the  bond  given  when  he  was  appoint- 
ed, gave  two  other  bonds  as  additional  security,  all  the  sureties  on 

i 

44  Ross  v.  "Koble,  51  P.  792,  6  Kan.  App.  361. 

45  Schowalter  v.  Beard,  63  P.  687,  10  Okl.  454. 

46  Choctaw,  O.  &  G.  R.  Co.  v.  Hamilton,  95  P.  972,  21  Okl.  126. 

47  Grain  Dealers'  Mut.  Fire  Ins.  Co.  v.  Missouri,  K.  &  T.  Ry.  Co.,  157  P. 
1187,  98  Kan.  344. 

*8  Schilling  v.  Black,  31  P.  143,  49  Kan.  552. 

49  Rev.  Laws  1910,  §  4694. 

The  holder  of  a  note  may,  at  his  option,  sue  one  only  of  several  indorsers. 
Home  v.  Oklahoma  State  Bank  of  Atoka,  139  P.  992,  42  Okl.  37. 

The  payee  of  a  note  may,  at  his  option,  sue  one  surety  without  joining  the 
maker  and  other  sureties.  Miller  v.  State,  52  Okl.  76,  152  P.  409;  Baker  v. 
Gaines  Bros.  Co.  (Okl.)  166  P.  159;  Francis  v.  First  Nat.  Bank,  138  P.  140, 
40  Okl.  267 ;  Palmer  v.  Noe,  48  Okl.  450,  150  P.  462 ;  Thompson  v.  Grider  Im- 
plement Co.,  128  P.  266,  36  Okl.  165. 

Under  Rev-  Laws  1910,  §§  969,  4694,  action  may  be  maintained  against  surety 
for  hire  on  a  bond  given  pursuant  to  section  3881,  without  joining  principal. 
Fidelity  &  Deposit  Co.  of  Maryland  v.  N.  S.  Sherman  Machine  &  Iron  Works, 
62  Okl.  29,  161  P.  793. 

(291) 


§§  428-431  PARTIES  (Ch.  8 

the  several  bonds  can  be  joined  in  one  suit  to  recover  the  amount 
due  from  the  guardian.50 

Where  a  guardian  attaches  to  his  final  account  a  certificate  of  a 
purported  time  deposit  in  a  bank,  which  deposit  was  falsely  issued, 
and  the  ward  sued  the  surety  on  the  guardian's  bond,  the  bank  was 
not  entitled  to  be  made  a  party.61 

§  429.     Infants 

"The  defense  of  an  infant  must  be  by  a  guardian  for  the  suit,  who 
may  be  appointed  by  the  court  in  which  the  action  is  prosecuted,  or 
by  a  judge  thereof,  or  by  a  county  judge.  The  appointment  cannot 
be  made  until  after  the  service  of  the  summons  in  the  action,  as  di- 
rected in  this  Code."  52 

§  430.    Guardian  ad  litem 

"The  appointment  may  be  made  upon  the  application  of  the  in- 
fant, if  he  be  of  the  age  of  fourteen  years,  and  apply  within  twenty 
days  after  the  return  of  the  summons.  If  he  be  under  the  age  of 
fourteen,  or  neglect  so  to  apply,  the  appointment  may  be  made  up- 
on the  application  of  any  friend  of  the  infant,  or  that  of  the  plaintiff 
in  the  action."  53 

A  court  has  no  jurisdiction  to  appoint  a  guardian  ad  litem  for  an 
infant  defendant  until  after  service  of  summons  in  the  manner  re- 
quired by  statute.54 

On  the  failure  of  the  guardian  ad  litem  to  properly  discharge  his 
duty,  it  is  the  duty  of  the  court  to  protect  the  infant's  rights.55 

§  431.     Husband  and  wife 

"If  a  husband  and  wife  be  sued  together,  the  wife  may  defend  for 
her  own  right;  and  if  her  husband  neglect  to  defend,  she  may  de- 
fend for  his  right  also."  56 


60  Abraham  v.  Harry  (Okl.)  165  P.  1154. 

61  Southern  Surety  Co.  v.  Jefferson  (Okl.)  174  P.  563. 

52  Rev.  Laws  1910,  §  4688. 

53  Rev.  Laws  1910,  §  4689. 

54  Boiling  v.  Campbell,  128  P.  1091,  36  Okl.  671;    Same  v.  Gibson,  128  P. 
1093,  36  Okl.  678. 

s  s  Boiling  v.  Campbell,  128  P.  1091,  36  Okl.  671;    Same  v.  Gibson,  128  P. 
1093,  36  Okl.  678;    In  re  Sanders'  Estate  (Okl.)   168  P.  197. 
so  Rev.  Laws  1910,  §  4685. 

(292) 


Art.  3)  DEFENDANT  §  432 

§  432.     State  as  defendant 

Suits  against  officers  of  a  state  as  representing  it,  in  which  the 
state  is  the  real  party  in  interest,  and  in  which  a  judgment  for  plain- 
tiff, though  nominally  against  defendants  as  individuals,  will  con- 
trol the  action  of  the  state,  are  suits  against  the  state.57 

Mandamus  brought  to  require  the  allowance  of  a  disputed  claim 
growing  out  of  a  private  contract  between  the  state  and  parties 
owning  property  occupied  by  state  officials  is  an  action  brought 
against  the  state.58 

A  state  cannot  be  sued  except  by  its  consent  granted  by  express 
legislative  enactment.59 

The  immunity  of  the  Oklahoma  State  Banking  Board  from  lia- 
bility to  suit  to  control  the  administration  of  the  depositors'  guaran- 
ty fund  cannot  be  waived  by  the  unauthorized  participation  by  the 
board  in  an  agreed  statement  of  facts.60 

A  suit  to  mandamus  the  state  banking  board  is  a  suit  against  the 
state.61 

A  suit  in  mandamus  to  compel  the  bank  commissioner  and  the 
banking  board  to  pay  a  claim  out  of  the  depositors'  guaranty  fund, 
being  in  effect  a  suit  against  the  state,  cannot  be  maintained  with- 
out the  state's  consent.62 

The  Agricultural  and  Mechanical  College,  being  a  public  or  quasi 
corporation  created  and  existing  by  virtue  of  the  laws  of  Oklahoma, 
cannot  be  sued,  since  the  statutes  give  no  such  authority.63  . 

67  Love  v.  Filtsch,  124  P.  30,  33  Okl.  131,  44  L.  R.  A.  (N.  S.)  212. 

58  Id. 

59  National  Surety  Co.  v.  State  Banking  Board,  49  Okl.  184,  152  P.  389. 

60  Id. 

I61  State  Banking  Board  v.  Oklahoma  Bankers'  Trust  Co.,  49  Okl.  72,  151  P. 
566. 

A  suit  to  mandamus  the  state  banking  board  is  a  suit  against  the  state,  so 
that,  without  the  state's  consent,  a  judgment  making  the  writ  peremptory 
was  error.  State  Banking  Board  v.  Oklahoma  Bankers'  Trust  Co.,  63  Okl.  260, 
164  P.  660. 

62  Lovett  v.  Lankford,  47  Okl.  12,  145  P.  767. 

The  state  banking  board  and  the  state  banking  commissioner  constitute  a 
part  of  the  state  government  and  cannot  be  sued  without  the  state's  consent. 
Lankford  v.  Schroeder,  47>  Okl.  279,  147  P.  1049,  L.  R.  A.  1915F,  623.  A  suit 
to  compel  the  state  bank  examiner  to  pay  a  debt  out  of  the  state  guaranty 
fund  or  the  bank's  assets  held  not  maintainable  without  the  state's  con- 
sent. Id. 

63  Oklahoma  Agricultural  &  Mechanical  College  v.  Willis,  52  P.  921,  6  Okl. 
593,  40  L.  R.  A.  677. 

(293) 


§  433  PARTIES  (Ch.  8 

§  433.     Change  of  parties  and  new  parties 

"The  court  may  determine  any  controversy  between  parties  be- 
fore it,  when  it  can  be  done  without  prejudice  to  the  rights  of  oth- 
ers, or  by  saving  their  rights ;  but  when  a  determination  of  the  con- 
troversy cannot  be  had  without  the  presence  of  other  parties,  the 
court  must  order  them  to  be  brought  in."  64 

Where  a  determination  cannot  be  had  without  presence  of  others 
not  parties,  and  who  are  interested  in  the  subject-matter,  the  court 
may  of  its  own  motion  order  them  brought  in.65 

In  a  legal  action  in  which  plaintiff  seeks  only  a  money  judgment, 
he  cannot  be  compelled  to  bring  in  and  admit  other  parties  than 
those  whom  he  has  chosen  as  defendants.66 

Where  insured  sues  in  her  own  name  on  a  policy  to  which  a  mort- 
gage clause  is  attached,  the  court  should  by  proper  order  protect 
the  mortgagee's  rights.67 

Plaintiff  may  amend  his  petition  at  any  time  before  answer  is 
filed  by  joining  as  coplaintiff,  a  party  having  an  interest  in  subject- 
matter  of  action  whether  acquired  before  or  after  filing  of  original 
petition.68 

W^here  the  grantee  of  land,  which,  at  the  time  of  the  conveyance, 
was  in  another's  adverse  possession,  sued  in  his  own  name  to  re- 
cover same,  it  was  not  error  to  permit  him  to  amend  his  petition  so 
as  to  join  his  grantor  as  plaintiff.69 

Where  judgment  for  defendant  must  be  affirmed,  a  transfer  of 
defendant's  property  subsequent  to  such  judgment  could  not  af- 
fect rights  of  plaintiff,  and  hence  application  for  leave  to  make  de- 
fendant's transferees  additional  parties  defendant  will  be  denied.70 

«*  Rev.  Laws  1910,  §  4696. 

The  statute  authorizes  courts  to  determine  any  controversy  when  it  can 
be  done  without  prejudice,  and  to  order  new  parties  to  be  brought  in.  Haynes 
v.  City  Nat.  Bank  of  Lawton,  12i  P.  182,  30  Okl.  614. 

65  Simpson  v.  Hillis,  30  Okl.  561,  120  P.  572,  Ann.  Gas.  1913C,  227. 

ee  Modern  Woodmen  of  America  v.  Terry  (Okl.)  171  P.  720. 

Where,  in  an  action  on  a  note,  in  which  plaintiff  seeks  nothing  but  a  mon- 
ey judgment,  he  cannot  be  compelled  to  bring  in  and  to  admit  other  parties 
than  those  whom  he  has  chosen  as  defendants.  Goodrich  v.  Williamson,  63 
P.  974,  10  Okl.  588,  617. 

«*7  Liverpool  &  London  &  Globe  Ins.  Co.  v.  Cargill,  44  Okl.  735,  145  P.  1134. 

«s  Willis  v.  Cochran  (Okl.)  168  P.  658. 

09  Gannon  v.  Johnston,  140  P.  430,  40  Okl.  695,  Ann.  Cas.  1915D,  522. 

70  Shaw  v.  Life  &  Annuity  Ass'n,  165  P.  818,  101  Kan.  235. 

(294) 


Art.  3)  DEFENDANT  §  433 

Where  a  third  person  is  made  defendant  by  order  of  court,  after 
the  issues  are  joined,  and  such  third  party  claims  title  to  the  prop- 
erty sought  to  be  foreclosed,  it  is  not  error  to  overrule  a  demurrer 
to  the  petition  filed  by  the  newly  made  defendant.71 

Where  the  cause  of  action  is  not  changed,  and  all  parties  submit 
to  the  jurisdiction  of  the  court,  and  no  showing  is  made  for  a  con- 
tinuance, it  is  not  error,  upon  a  proper  application,  after  the  jury 
has  been  impaneled,  to  make  one  of  a  number  of  co-defendants 
plaintiff  in  the  action.72 

Where  one  of  several  defendants  files  a  supplemental  complaint, 
showing  that  he  has  paid  the  note  in  suit,  it  is  proper  to  order  him 
to  be  subrogated  to  the  rights  of  the  payee,  and  to  be  made  a  party 
plaintiff.73 

The  amendment  of  a  petition  in  an  action  for  damages  by  the  ad- 
dition of  the  name  of  a  party  plaintiff  does  not  substantially  change 
the  claim  or  defense.7* 

Where  an  action  is  regularly  pending,  and  a  necessary  party  to 
the  full  determination  of  the  case  has  been  made  a  defendant,  and 
has  been  duly  served,  and  enters  an  appearance,  such  defendant 
may  not  have  the  action  dismissed  as  to  himself  on  the  ground  of 
want  of  jurisdiction  in  the  court  granting  the  order  making  him  a 
party  defendant.75 

Since  the  statute  requires  one  made  a  party  defendant  to  an  ac- 
tion to  be  notified  in  the  manner  provided  for  notifying  original  de- 
fendants, the  court  had  no  jurisdiction  to  enter  a  default  judgment 
against  one  who  was  made  a  party  defendant  to  a  pending  action 
by  an  order  requiring  him  to  be  given  but  three  days'  notice  to  an- 
swer.76 

71  Simpson  v.  Hillis,  30  Okl.  561,  120  P.  572,  Ann.  Cas.  1913C,  227. 

72  Keokuk  Falls  Imp.  Co.  v.  Kingsland  &  Douglas  Manuf'g  Co.,  47  P.  484, 
5  Okl.  32. 

7sid. 

74  Hucklebridge  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  71  P.  814,  66  Kan.  443. 

75  Redlon  v.  Fish-Keck  Co.,  54  P.  285,  7  Kan.  App.  473. 

76  Moore  v.  Donahew,  41  P.  579,  3  Okl.  396. 

(295) 


§  434  PARTIES  (Ch.  8 

§  434.    Substitution— Plaintiff 

A  trial  court,  in  the  furtherance  of  justice,  may  permit  a  new 
party  to  be  substituted  in  the  place  of  plaintiff.77 

Where  the  interests  in  the  subject-matter  of  a  pending  suit  are 
transferred,  the  court  may  substitute  such  party  for  the  original 
party  in  the  action.78 

The  real  parties  in  interest  may  be  substituted  as  plaintiffs  in 
an  action  previously  brought  in  the  name  of  the  state  upon  an  ex- 
ecutors bond.70 

Permitting  a  plaintiff  to  amend  the  petition,  so  as  to  charge  de- 
fendant as  a  copartnership  instead  of  a  corporation  as  originally 

77  Harper  v.  Hendricks,  31  P.  734,  49  Kan.  718;  Gross  v.  Lincoln  (Okl.)  196 
P.  960. 

Where,  in  a  suit  to  restrain  execution  of  a  judgment,  on  the  ground  that 
the  land  levied  on  was  a  homestead,  the  title  thereto  being  at  the  time  in 
the  United  States,  but  subsequently  proven  up,  an  amendment,  striking  out 
the  name  of  plaintiff  and  substituting  that  of  his  wife,  was  properly  allow- 
ed. Rader  v.  Gvozdanovic,  130  P.  159,  35  Okl.  421. 

Under  Code,  §  40,  providing  that,  where  there  has  been  a  transfer  of  in- 
terest, an  action  may  be  continued  in  the  name  of  the  original  party,  or  the 
person  to  whom  the  transfer  is  made  may  be  substituted,  one  who  acquired 
the  entire  interest  in  a  judgment  recovered  by  a  plaintiff  who  thereafter  died 
may,  on  a  revival  of  such  judgment,  be  substituted  as  plaintiff.  United 
States  Bldg.  Co.  v.  Walker,  54  P.  1043,  59  Kan.  779. 

Code  Civ.  Proc.  §  3917,  provides  that,  in  actions  against  a  sheriff  for  the 
recovery  of  property  taken  under  an  execution  and  replevied  by  the  execu- 
tion debtor,  the  court  may,  on  application  of  the  defendant  and  of  the  par- 
ty in  whose  favor  the  execution  issued,  permit  the  latter  to  be  substituted  as 
the  defendant;  security  for  costs  being  given.  Held,  that  an  application  for 
permission  to  be  substituted  was  properly  refused  where  it  was  unverified, 
and  no  security  for  costs  was  given,  and  the  property  had  not  been  replevied 
by  the  execution  debtor.  Pierce  v.  Engelkenieier,  61  P.  1047,  10  Okl.  308. 

Under  Act  Cong.  July  1,  1898,  §  70  (U.  S.  Comp.  St.  §  9654),  relating  to 
vesting  of  bankrupt's  property  in  his  trustee,  the  latter  is  a  proper  party  to 
sue  on  contracts  or  for  injury  to  the  property  of  the  bankrupt,  but  he  cannot 
be  substituted  as  plaintiff  in  a  pending  suit  for  libel  on  the  bankrupt,  though 
the  injuries  occasioned  by  such  libel  may  have  been  the  cause  of  the  bank- 
ruptcy. Epstein  v.  Handverker,  116  P.  789,  29  Okl.  337. 

7  8  Anderson  v.  Ferguson,  71  P.  225,  12  Okl.  307;  Purcell  Mill  &  Elevator 
Co.  v.  Canadian  Valley  Const.  Co.,  58  Okl.  629,  160  P.  485 ;  Bradford  v.  Bren- 
nan,  12  Okl.  333,  71  P.  655. 

On  a  transfer  of  real  estate  pending  a  litigation  in  connection  therewith, 
the  action  may  be  continued  in  the  name  of  the  original  party,  or  the  court 
may  allow  the  person  to  whom  the  transfer  is  made  to  be  substituted  in  his 
place.  Gillett  v.  Romig,  87  P.  325,  17  Okl.  324. 

™  Hudson  v.  Barratt,  61  P.  737,  62  Kan.  137. 

(296) 


Art.  3)  DEFENDANT  §§  434-435 

alleged,  being  within  the  discretion  of  the  trial  court,  is  not  ground 
of  reversal.80 

Where,  during  an  action  by  an  infant,  by  next  friend,  he  attains 
his  majority,  he  may  continue  the  action  in  his  own  name.81 

Where  all  the  parties  are  before  the  court,  it  is  not  error,  in  an 
action  that  should  be  prosecuted  by  the  heirs  of  a  decedent,  to  per- 
mit them  to  be  substituted  to  prosecute  such  action  in  lieu  of  the 
administrator,  who  had  no  right  to  maintain  it.82 

It  is  no  abuse  of  discretion  to  refuse  to  permit  the  owner  of  a 
note  to  be  substituted  as  plaintiff  in  an  action  thereon  commenced 
in  the  name  of  another,  and  so  continued  for  years  after  the  at- 
torney for  the  owner  knew  thereof,  no  reason  for  the  delay  in  the 
application  being  shown.83 

That  an  order  was  that  a  guardian  be  substituted  for  plaintiff 
instead  of  that  the  guardian  be  permitted  to  prosecute  for  her  ward, 
was  a  mere  formal  irregularity  not  depriving  the  court  of  jurisdic- 
tion to  proceed  in  the  cause.84 

§  435.    Disclaimer 

"Upon  affidavit  of  a  defendant,  before  answer,  in  any  action  up- 
on contract,  or  for  the  recovery  of  personal  property,  that  some 
third  party,  without  collusion  with  him,  has  or  makes  a  claim  to  the 
subject  of  the  action,  and  that  he  is  ready  to  pay  or  dispose  of  the 
same,  as  the  court  may  direct,  the  court  may  make  an  order  for  the 
safe  keeping,  or  for  the  payment,  or  deposit  in  court  or  delivery  of 
the  subject  of  the  action,  to  such  persons  as  it  may  direct,  and  an 
order  requiring  such  third  party  to  appear,  in  a  reasonable  time,  and 
maintain  or  relinquish  his  claim  against  the  defendant.  If  such 
third  party,  being  served  with  a  copy  of  the  order,  by  the  sheriff,  or 
such  other  person  as  the  court  may  direct,  fail  to  appear,  the  court 

80  Farmers'  &  Merchants'  Bank  v.  Bank  of  Glen  Elder,  26  P.  680,  46  Kan. 
376. 

Where  defendant  has  been  sued  by  a  title  as  a  corporation,  and  put  in  an 
answer  alleging)  a  partnership,  and  giving  the  names  of  its  members,  it  is 
proper  to  allow  an  amendment  substituting  their  names.  Anglo-American 
Packing  &  Provision  Co.  v.  Turner  Casing  Co.,  8  P.  403,  34  Kan.  340. 

81  Webb  v.  Harris,  121  P.  1082,  32  Okl.  491,  Ann.,  Cas.  1914A,  602;    Johnson 
v.  Alexander   (Okl.)  167  P.  989. 

"  Farrell  v.  Puthoff,  74  P.  96,  13  Okl.  159. 

83  Switzer  v.  Eadie,  80  P.  961,  71  Kan.  859. 

84  Jones  v.  Southwestern  Interurban  Ry.  Co.,  141  P.  999,  92  Kan.  809. 

(297) 


§§  435-437  PARTIES  (Ch.  8 

may  declare  him  barred  of  all  claim  in  respect  to  the  subject  of  the 
action,  against  the  defendant  therein.  If  such  third  party  appear, 
he  shall  be  allowed  to  make  himself  defendant  in  the  action,  in  lieu 
of  the  original  defendant,  who  shall  be  discharged  from  all  liability 
to  either  of  the  other  parties  in  respect  to  the  subject  of  the  action, 
upon  his  compliance  with  the  order  of  the  court  for  the  payment, 
deposit  or  delivery  thereof."  85 

"The  provisions  of  the  last  section  shall  be  applicable  to  an  ac- 
tion brought  against  a  sheriff  or  other  officer,  for  the  recovery  of 
personal  property,  taken  by  him  under  execution,  or  for  the  pro- 
ceeds of  such  property  so  taken  and  sold  by  him ;  and  the  defendant 
in  any  such  action  shall  be  entitled  to  the  benefit  of  those  provi- 
sions against  the  party  in  whose  favor  the  execution  issued,  upon 
exhibiting  to  the  court  the  process  under  which  he  acted,  with  his 
affidavit  that  the  property,  for  the  recovery  of  which,  or  its  proceeds, 
the  action  is  brought,  was  taken  under  such  process."  8a 

§  436.     Substitution  of  judgment  creditor 

"In  an  action  against  a  sheriff  or  other  officer  for  the  recovery  of 
property  taken  under  an  execution  and  replevied  by  the  plaintiff  in 
such  action,  the  court  may,  upon  application  of  the  defendant  and  of 
the  party  in  whose  favor  the  execution  issued,  permit  the  latter  to 
be  substituted  as  the  defendant,  security  for  the  cost  being  given."  87 


ARTICLE  IV 

IXTERVRNER 

Sections 

437.  Interplea — Affidavit— Trial. 

438.  Pleading. 

439.  Cases  outside  statute. 

§  437.     Interplea— Affidavit — Trial 

"Any  person  claiming  property,  money,  effects,  or  credits  attach- 
ed, may  interplead  in  the  cause,  verifying  the  same  by  affidavit, 
made  by  himself,  agent  or  attorney,  and  issues  may  be  made  upon 
such  interpleader  and  shall  be  tried  as  like  issues  between  plaintiff 
and  defendant,  and  without  any  unnecessary  delay."  88 

85  Rev.  Laws  1910,  §  4698.  87  Rev.   Laws  1910,  §  4700. 

86  Rev.  Laws  1910,  §  4699.  88  Rev.  Laws  1910,  §  4701. 

(298) 


Art.  4)  INTERVENER  ,  §§  437-438 

Where  a  wife  had  recovered  a  judgment  awarding  her  land  as 
alimony  she  could  intervene  in  a  proceeding  wherein  husband's 
creditor  had  attached  land.88 

In  an  action  for  divorce  for  adultery,  the  correspondent  has  no 
right  to  intervene  to  protect  his  reputation.90/ 

In  an  action  to  enforce  a  landlord's  lien,  a  petition  for  intervention 
was  properly  denied,  where  the  intervener  had  no  claim  sustainable 
against  either  plaintiff  or  defendant.91 

In  an  action  of  strict  interpleader,  plaintiff  must  show  conflicting 
claims  against  him  for  the  same  thing,  and  that  he  has  no  interest 
therein.92 

Where  plaintiffs,  who  had  offered  a  reward  for  the  apprehension 
of  a  criminal,  alleged  that  they  were  threatened  with  litigation  by 
different  parties  claiming  the  reward,  that  some  one  or  more  of  de- 
fendants were  entitled  to  receive  it,  and  asked  that  defendants  be 
required  to  litigate  their  claims  to  the  fund  which  was  paid  into 
court,  an  action  in  the  nature  of  a  bill  of  interpleader  was  proper.93- 

§  438.     Pleading 

An  application  for  leave  to  intervene  must  show  that  the  ap- 
plicant has  been  diligent  in  seeking  the  aid  of  the  court.8* 

A  petition  in  intervention  is  demurrable,  where  it  fails  to  show 
that  the  petitioner  has  or  claims  an  interest  adverse  to  plaintiff,  or 
that  she  is  a  necessary  party  to  a  determination  of  the  issues.95 

g9  Germania  Nat.  Bank  v.  Duncan,  62  Okl.  144,  161  P.  1077. 

90  Howell  v.  Herriff,  124  P.  168,  87  Kan.  389,  Ann.  Gas.  1913E,  429. 

91  Reynolds  v.  Ryan,  59  Okl.  120,  157  P.  933. 

92  Guaranteed  State  Bank  of  Durant  v.  D'Yarmett  (Okl.)  169  P.  639. 
Under  Code  Civ.  Proc.  §  43,  providing  that  on  affidavit  of  a  defendant,  in 

any  action  on  contract,  that  some  third  party,  without  collusion  with  him, 
makes  a  claim  to  the  subject-matter,  and  that  he  is  ready  to  dispose  of  the 
same  as  the  court  may  direct,  the  court  may  order  the  delivery  of  the  sub- 
ject of  the  action  to  such  person  as  it  may  direct,  and  require  such  third 
party  to  appear  in  a  reasonable  time  and  relinquish  his1  claim  against  de- 
fendant, where,  in  an  action  by  the  assignee  of  a  note  against  the  maker,  a 
third  party  intervenes,  claiming  that  the  note  was  executed  in  fraud  of  cred- 
itors, and  asking  that  the  liability  claimed  in  plaintiff's  behalf  be  disallowed 
and  the  proceeds  of  the  note  awarded  interpleader,  and  defendant,  by  affi- 
davit, admits  liability  to  the  extent  of  the  indebtedness  then  due  on  the  note, 
the  court  may  order  him  to  pay  the  amount  into  court  and  discharge  him. 
from  liability.  Goodrich  v.  Williamson,  63  P.  974,  10  Okl.  588,  617. 

93  Taft  v.  Hyatt,  105  Kan.  35,  180  P.  213. 

94  Gibson  v.  Ferrell,  94  P.  783,  77  Kan.  454. 

95  Stebbens  v.  Longhoffer,  44  Okl.  84,  143  P.  671. 

(299) 


§§  438-440  PARTIES  (Ch.  8 

A  plea  of  intervention  in  the  nature  of  a  creditor's  bill  should  con- 
tain all  the  necessary  allegations  within  itself,  and  the  interpleader 
should  not  be  allowed  to  refer  to,  and  make  a  part  of  his  plea  of 
intervention,  portions  of  the  original  petition;  but,  where  such 
reference  is  made  and  trial  had  on  such  pleadings,  if  the  Supreme 
Court  can  determine  that  the  judgment  is  right,  it  will  not  be  dis- 
turbed.96 

In  an  action  to  foreclose  by  a  mortgagee,  a  lienholder  who  is  not 
made  a  party  in  the  first  instance  is  entitled  to  intervene  at  any 
time  before  final  judgment,  and,  by  answer  in  the  nature  of  a  cross- 
petition,  ask  to  have  the  same  foreclosed.97 

§  439.     Cases  outside  statute 

The  district  court  may,  in  cases  not  provided  for  by  the  Code,  per- 
mit one  not  a  party  to  a  suit  to  intervene  either  before  or  after  judg- 
ment for  the  protection  of  some  right  with  reference  to  the  subject- 
matter  of  the  litigation.98  However,  in  an  action  on  a  note  brought 
by  an  assignee  against  the  maker,  a  third  party,  claiming  that  the 
note  was  executed  by  the  maker  in  fraud  of  creditors  of  whom  inter- 
pleader was  one,  and  asking  that  the  liability  claimed  in  plaintiff's 
behalf  be  disallowed  and  the  proceeds  of  the  note  awarded  inter- 
pleader, cannot  be  permitted  to  intervene  without  plaintiff's  consent, 
since  such  proceeding  is  not  one  contemplated  by  statute.99 


ARTICLE  V 
DEFECTS,  OBJECTIONS,  AND  AMENDMENTS 

Sections 

440.  Want  of  interest  or  capacity. 

441.  Nonjoinder. 

442.  Misjoinder. 

443.  Amendment. 

§  440.    Want  of  interest  or  capacity 

"The  due  incorporation  of  any  company,  claiming  in  good  faith 

to  be  a  corporation  under"  the  law  authorizing  the  creation  of  cor- 
se Blackwell  v.  Hatch,  73  P.  933,  13  Okl.  169. 

97  Blanshard  v.  Schwartz,  54  P.  303,  7  Okl.  23. 

98  Gibson  v.  Ferrell,  94  P.  783,  77  Kan.  454. 

»9  Goodrich  v.  Williamson,  63  P.  974,  10  Okl.  588,  617. 

(300) 


Art.  5)  DEFECTS,  OBJECTIONS,  AND  AMENDMENTS  §   440 

porations,  "and  doing  business  as  such,  or  its  right  to  exercise  cor- 
porate powers,  shall  not  be  inquired  into  collaterally,  in  any  pri- 
vate suit  to  which  such  de  facto  corporation  may  be  a  party ;  but 
such  inquiry  may  be  had,  and  action  brought,  at  the  suit  of  the  state, 
in  the  manner  prescribed  in  civil  procedure."  x 

An  objection  that  one  has  no  legal  capacity  to  sue  goes  to  his 
right  to  maintain  a  suit  at  all,  as  that  he  is  an  idiot,  insane,  or  a  min- 
or, and  does  not  include  the  objection  that  the  action  is  not  prose- 
cuted in  the  name  of  the  real  party  in  interest.2 

The  want  of  authority  in  plaintiff  to  sue  in  his  own  name,  in 
behalf  of  himself  and  others,  cannot  be  taken  advantage  of  by  de- 
murrer, but  must  be  raised  by  a  motion.3 

If  plaintiff  has  no  legal  capacity  to  sue,  the  question  goes  to 
the  sufficiency  of  his  pleading  to  state  a  cause  of  action,  and  is  not 
waived  by  failure  to  demur,  answer,  or  plead  a  want  of  capacity. 
Where  the  petition  of  a  widow,  in  an  action  for1  wrongful  death 
of  her  husband  against  a  railroad  company,  failed  to  show  that  the 
injury  occurred  while  decedent  was  engaged  in  interstate  com- 
merce, and  such  fact  was  first  alleged  in  defendant's  answer  and 
not  denied  in  plaintiff's  reply,  an  objection  that  plaintiff  had  no 
capacity  to  sue  under  the  federal  Employers'  Liability  Act  (U.  S. 
Comp.  St.  §§  8657-8665)  was  properly  urged  for  the  first  time  by 
a  motion  for  judgment  on  the  pleadings.  Where  plaintiff  is  a 
natural  person  under  no  legal  disability  to  maintain  actions,  a  failure 
to  state  a  cause  of  action  in  her  own  favor  goes  to  the  sufficiency  in 
substance  of  the  petition,  and  not  to  her  legal  capacity  to  sue.4 

The  objection  that  plaintiff  has  no  legal  capacity  to  sue  is  a 
ground  of  demurrer,  and  when  not  so  raised,  is  waived.5  "Want  of 
capacity  to  sue,"  within  the  rule  that  a  plea  to  the  merits  waives 
such  want,  refers  only  to  some  legal  disability,  such  as  infancy, 
illiteracy,  or  coverture.6 

In  an  action  on  a  bond,  the  question  of  real  party  in  interest  did 
not  concern  defendants,  not  shown  to  have  any  defense.7 

1  Rev.  Laws  1910,  §  1212. 

2  Boyce  v.  Augusta  Camp  No.  7,429,  M.  W.  A.,  78  P.  322,  14  Okl.  642 ;   Lo- 
gan v.  Oklahoma  Mill  Co.,  79  P.  103,  14  Okl.  402. 

3  Martin  v.  Clay,  56  P.  715,  8  Okl.  46. 

4  Missouri,  K.  &  T.  Ry.  Co.  v.  Lenahan,  39  Okl.  283,  135  P.  383. 

5  Binion  v.  Lyle,  114  P.  618,  28  Okl.  430. 

6  Bailey  v.  Parry  Mfg.  Co.,  59  Okl.  152,  158  P.  581. 

7  Moore  v.  Leigh-Head  &  Co.,  48  Okl.  228,  149  P.  1129. 

(301) 


§§  440-441  PARTIES  (Ch.  8 

Whether  a  party  in  whose  name  an  action  is  prosecuted  is  the 
real  party  in  interest  may  be  raised  by  answer  when  such  defect 
does  not  appear  on  the  face  of  the  pleadings.8 

The  defendant  not  having  taken  any  objections  that  plaintiff  was 
not  the  proper  party,  or  had  no  capacity  to  sue,  either  by  demurrer 
or  answer,  is  deemed  to  have  waived  the  same.9 

The  rule  that  a  partnership  has  not  a  sufficient  legal  entity  to  sue 
in  its  own  name,  and  must  sue  in  the  name  of  the  individuals  com- 
posing it,  is  for  the  benefit  of  and  may  be  waived  by  the  party 
sued.10 

By  pleading  to  the  merits  a  defendant  admits  plaintiff's  ca- 
pacity to  maintain  the  action.11 

In  a  suit  to  remove  a  sheriff  from  office  for  alleged  malfeasance, 
an  objection  that  the  proceeding  was  instituted  by  members  of  the 
board  of  county  commissioners  as  individuals,  and  not  as  a  board, 
raised  by  demurrer,  was  not  jurisdictional,  and  was  waived  by  de- 
fendant filing  his  answer  pending  determination  of  the  demurrer.12 

The  want  of  a  plaintiff's  legal  capacity  to  sue  as  a  corporation 
where  such  fact  does  not  affirmatively  appear  upon  the  face  of  the 
petition,  must  be  raised  by  special  plea  in  the  nature  of  a  plea  in 
abatement,  and  not  by  motion  for  judgment  upon  the  pleading  or 
by  objection  to  the  introduction  of  evidence  under  the  pleadings, 
and,  if  not  raised  by  special  plea,  defendant,  by  pleading  to  the  mer- 
its, admits  plaintiff's  capacity  to  sue.13 

§  441.     Nonjoinder 

A  nonjoinder  of  parties  plaintiff,  appearing  on  the  face  of  the 
petition,  is  waived  by  a  failure  to  demur  on  that  ground.14 

On  foreclosure  of  a  mechanics'  lien  by  a  subcontractor,  failure  to 
make  the  original  contractor  a  party  is  waived  when  not  objected  to 
by  demurrer  or  answer.15 

8Maxia  v.  Oklahoma  Portland  Cement  Co.   (Okl./ 176  P.  907. 

9  Maelzer  v.  Swan,  89  P.  1037,  75  Kan.  496. 

10  Kale  v.  Humphrey    (Okl.)    170  P.  223. 

11  Leader  Printing  Co.  v.  Lowry,  59  P.  242,  9  Okl.  89. 

12  Meredith  v.  Choctaw  County,  111  P.  197,  28  Okl.  531. 

13Jantzen  v.  Emanuel  German  Baptist  Church,  112  P.  1127,  27  Okl.  473, 
Ann.  Cas.  1912C,  659. 

14  Foster  v.  Board  of  Com'rs  of  Lyon  County,  64  P.  1037,  63  Kan.  43. 

15  Eberle  v.  Drennan,  .136  P.  162,  40  Okl.  59,  51  L.  R.  A.  (N.  S.)  68. 

(302) 


Art.  5)  DEFECTS,  OBJECTIONS,  AND   AMENDMENTS        §§   441-442 

In  an  action  for  damages  for  the  location  of  a  public  highway,  on 
appeal  from  the  board  of  county  commissioners,  an  objection  made, 
after  the  trial  has  commenced,  that  the  action  could  not  be  maintain- 
ed by  the  plaintiffs  jointly,  comes  too  late.16 

Where  an  action  for  an  accounting  of  a  partnership  in  which  the 
estate  is  interested  is  brought  by  one  executor,  and  the  other  execu- 
tors are  made  defendants,  the  failure  to  name  them  as  plaintiffs  is 
not  fatal  if  objection  is  not  taken  before  judgment.17 

The  rule  that  all  beneficiaries  of  the  trust  should  be  before  the 
court  in  an  action  concerning  it  is  one  which  has  been  established 
for  the  protection  of  the  trustee,  in  order  to  avoid  his  repeated  vex- 
ation by  a  multiplicity  of  suits ;  and,  if  he  waives  the  protection  of 
this  rule,  he  may  dispense  with  other  parties,  where  suit  is  brought 
by  the  trustee  under  a  chattel  mortgage  against  one  of  the  bene- 
ficiaries of  the  trust,  in  which  the  defendant's  rights  as  presented 
by  a  counterclaim  may  be  protected  without  injury  or  injustice  to 
other  beneficiaries  of  the  trust.18 

The  statute  requiring  defects  in  petitions  other  than  those  which 
appear  on  their  face  and  other  than  those  of  jurisdiction  and  in 
statements  of  fact  to  be  set  up  by  answer,  does  not  apply  to  a 
petition  by  a  partner  who  conceals  the  fact  of  partnership,  and 
wrongfully  brings  suit  in  his  own  name  for  an  injury  to  the  partner- 
ship property;  and  hence  in  such  case  defendant,  if  ignorant  of 
the  partnership  until  disclosed  on  the  trial,  may  then  raise  the  objec- 
tion without  the  amendment  of  his  answer.18 

§  442.     Misjoinder 

The  objection  that  there  is  a  misjoinder  of  parties  must  be  raised 
before  trial,  or  it  will  be  deemed  waived.20 

16  Commissioners  of  Lyon  County  v.  Coinan,  23  P.  1038,  43  Kan.  676. 

17  Insley  v.  Shire,  39  P.  713,  54  Kan.  793,  45  Am.  St.  Rep.  308. 
18Wyman  v.  Herard,  59  P.  1009,  9  Okl.  35. 

19Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Hucklebridge,  64  P.  58,  62  Kan.  506. 

2 "Phillips  v.  Mitchell  (Okl.)  172  P.  85,  writ  of  error  dismissed  248  U.  S. 
531,  39  S.  Ct.  7,  63  L.  Ed.  405 ;  Schwartzel  v.  Karnes,  44  P.  41,  2  Kan.  App. 
782. 

Wtyere  a  municipal  corporation  sued  by  an  incorrect  name  answered  and 
went  to  trial  without  objection,  and  judgment  was  rendered  against  it  in  its 
proper  name,  it  waived  the  misnomer.  City  of  Kingfisher  v.  Pratt,  43  P. 
1068,  4  Okl.  284. 

If  one  who  is  made  a  party  to  a  cause  of  action  appears  and  answers  a 

(303) 


§§  442-443  PARTIES  (Ch.  8 

The  statute  forbidding  change  of  title  of  a  cause,  does  not  con- 
flict with  the  statute  authorizing  amendment  as  to  parties.21 

Where  land  is  conveyed,  by  two  persons  jointly  by  a  single  deed 
for  a  joint  consideration,  the  grantee,  when  sued  for  such  considera- 
tion by  the  grantors  jointly,  waives  any  objection  to  the  misjoin- 
der  of  plaintiffs  by  not  raising  the  objection  either  by  answer  or  de- 
murrer, though  at  the  trial  it  appears  that  each  of  the  grantors 
owned  a  separate  portion  of  the  land,  since  the  Code  has  abrogated 
the  common-law  rule  that  a  legal  action  brought  by  two  or  more 
persons  jointly  must  entirely  fail  if  the  cause  of  action  establish- 
ed at  the  trial  is  in  favor  of  a  part  of  the  plaintiffs  only.22 

An  objection  that  an  agent  cannot  be  joined  as  defendant  in  an 
action  against  the  principal  unless  his  agency  is  coupled  with  an  in- 
terest can  only  be  made  by  the  agent,  but  he  is  not  in  position  to 
make  it  where  he  has  filed  a  written  offer  of  judgment.28 

§  443.    Amendment 

Where  an  attaching  officer  sues  on  an  indemnity  bond  for  the 
use  of  a  third  person,  who  recovered  judgment  against  him  for  a 
wrongful  levy,  he  may  amend  so  as  to  allege  a  cause  of  action  in  his 
own  name.24 

The  district  court  has  power,  in  the  furtherance  of  justice,  to  per- 
mit an  amendment  of  a  petition  by  striking  out  one  given  name  of 
plaintiff,  and  substituting  another  when  it  is  shown  that  the  first 
name  was  used  by  mistake.25 

It  was  not  an  abuse  of  discretion  to  permit  a  plaintiff  styled  "In- 
terstate Switch  Company  of  Missouri"  to  amend  by  striking  out  ther 
words  "of  Missouri,"  where  those  words  were  not  a  part  of  its  cor- 
porate name.26 

cross-action  against  him  without  objection  to  being  made  a  party  or  to  mis- 
joinder  of  causes  of  action,  he  will  be  deemed  to  have  waived  all  objections, 
except  that  the  facts  alleged  are  not  sufficient  to  state  a  cause  of  action 
against  him.  State  Exch.  Bank  of  Elk  City  v.  National  Bank  of  Commerce 
of  St.  Louis,  Mo.  (Okl.)  174  P.  796,  2  A.  L.  R.  211;  Same  v.  Traders'  Nat 
Bank  of  Kansas  City,  Mo.  (Okl.)  174  P.  799. 

21  Zahn  v.  Obert,  60  Okl.  118,  159  P.  298;    Rev.  Laws  1910,  §§  4768,  4790. 

22  Hurd  v.  Simpson,  27  P.  961,  47  Kan.  372,  affirming  judgment  26  P.  465, 
47  Kan.  245. 

23  Gregg  v.  Berkshire,  62  P.  550,  10  Kan.  App.  579. 

24  Armour  Packing  Co.  v.  Or  rick,  46  P.  573,  4  Okl.  661. 

25  Weaver  v.  Young,  14  P.  458,  37  Kan.  70. 

2?  Maher  v.  Interstate  Switch  Co.,  51  P.  286,  58  Kan.  817. 

(304) 


Ch.  9)  COMMENCMENT  OF  ACTION  §§   444-445 

CHAPTER  IX 

COMMENCEMENT  OF  ACTION 

Sections 

411  450.  Article  I. — Accrual  of  cause. 

451-505.  Article  II. — Process. 

451— 460.  Division  I. — In  general. 

461-489.  Division  II. — Service  and  return. 

490-500.  Division  III. — Service  by  publication. 

501.  Division  IV. — Exemption  from  service. 

502-505.  Division  V. — Objections  and  amendments. 

506-511-  Article  III. — Appearance. 

ARTICLE  I 

ACCRUAL  OF  CAUSE 

Sections 

444.     Definition. 
445-    How  action  commenced 

446.  Effect — Notice   to    third   persons. 

447.  Premature  actions. 

448.  Insurance. 

449.  Waiver. 

450.  Cure  of  defect. 

§  444.     Definition 

A  cause  of  action  accrues  from  the  time  the  right  to  sue  for  the 
breach  attaches.1  , 

§  445.     How  action  commenced 

"A  civil  action  may  be  commenced  in  a  court  of  record  by  filing  in 
the  office  of  the  clerk  of  the  proper  court  a  petition  and  causing  a 
summons  to  be  issued  thereon."  2 

Where  summons  is  served  in  due  time,  jurisdiction  of  the  sub- 
ject-matter is  acquired  as  of  the  date  of  the  filing  of  the  petition  and 
issuance  of  summons.3 

1  Walker  v.  Bowman,  111  P.  319,  27  Okl.  172,  30  L.  R.  A.  (N.  S.)  642,  Ann. 
Cas.  1912B,  839,  reversing  judgment  105  P.  649,  on  rehearing. 

2  Rev.  Laws  1910,  §  4703. 

Clerk  of  court  held  without  authority  to  issue  summons  before  petition  is 
filed  by  plaintiff.  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Lambert,  121  P.  654,  31 
Okl.  300,  Ann.  Cas.  1913E,  329. 

s  Drummond  v.  Drummond,  49  Okl.  649,  154  P.  514. 

HON.PL.&  PBAC.— 20  (305)  ' 


§§    445-447  COMMENCEMENT  OF  ACTION  (Ch.  9 

Where  a  party  temporarily  hands  a  petition  to  a  clerk  of  the 
court,  that  he  may  place  his  file  mark  thereon,  and  not  for  the  pur- 
pose of  allowing  it  to  remain  in  his  custody,  or  to  issue  summons 
thereon,  the  action  is  not  commenced.4 

§  446.     Effect — Notice  to  third  persons 

"When  the  petition  has  been  filed,  the  action  is  pending,  so  as 
to  charge  third  persons  with  notice  of  its  pendency,  and  while 
pending  no  interest  can  be  acquired  by  third  persons  in  the  subject- 
matter  thereof  as  against  the  plaintiff's  title;  but  such  notice 
shall  be  of  no  avail  unless  the  summons  be  served  or  the  first  pub- 
lication made  within  sixty  days  after  the  filing  of  vthe  petition."  5 

Except  as  to  computation  of  interest  and  some  other  exceptional 
cases,  the  rights  of  parties,  in  the  absence  of  supplemental  plead- 
ings, are  fixed  as  of  the  time  of  the  commencement  of  the  action.6 

§  447.     Premature  actions 

An  action  cannot  be  maintained  on  a  debt  before  it  is  due.7 

A  provision  in  a  mortgage,  securing  a  note  payable  two  years 

after  date  that  on  default  in  any  interest  the  whole  interest  should 

*  Wilkinson  v.  Elliott,  23  P.  614,  43  Kan.  590,  19  Am.  St.  Rep.  158. 

5  Rev.  Daws  1910,  §  4732. 

e  Robertson  v.  Howard,  112  P.  162,  83  Kan.  453. 

7  Where  plaintiff  and  defendant  agreed  to  furnish  equal  sums  and  purchase 
segregated  coal  lands  of  Choctaw  and  Chickasaw  Nations  from  Department 
of  Interior  in  name  of  defendant  for  their  joint  use,  and  agreed  on  division 
of  land,  and  certificate  was  issued  to  defendant,  plaintiff's  action  for  specific 
performance  was  prematurely  brought,  as  title  did  not  pass  under  certificate, 
and  as  defendant  was  not  entitled  to  patent  until  full  compliance  with  terms 
of  sale.  Mahar  v.  Ward  (Okl.)  180  P.  859. 

A  suit  to  restrain  the  publication  under  Rev.  Laws  1910,  §  615,  of  a  resolu- 
tion declaring  that  a  necessity  exists  for  paving,  held  premature.  Pitser  v. 
City  of  Pawnee,  47  Okl.  559,  149  P.  201. 

Where  paving  assessments  against  property  owners  had  been  ascertained 
and  notice  thereof  given  those  who  had  filed  their  written  objections  thereto 
pursuant  to  charter  of  the  city  of  Tulsa,  art.  9,  §  7,  an  action  brought  there- 
after to  enjoin  the  collection  of  such  assessment  after  the  objections  were 
overruled  was  not  premature.  Arnold  v.  City  of  Tulsa,  38  Okl.  129,  132  P.  669. 

Under  Rev.  Laws  1910,  §§  6777,  6778,  taxpayers'  right  of  action  against 
city  officers  paying  claim  against  city  pursuant  to  unlawful  or  fraudulent  con- 
,tract  and  against  party  receiving  money  does  not  accrue  until  performance 
of  conditions  under  section  6778.  State  v.  Oklahoma  City  (Okl.)  168  P.  227. 

Where  creditor's  claim  has  been  reduced  to  judgment  and  transcript  there- 
of filed  in  county  court,  and  administrator  refuses  to  pay  a  claim,  though  or- 
dered to  sell  property  to  pay  debts,  the  creditor  may  sue  sureties  on  adminis- 

(306) 


Art.  1)  ACCRUAL  OP  CAUSE  §  447 

I 

become  payable  related  alone  to  a  foreclosure,  and  did  not  accel- 
erate time  of  payment  of  the  note.8 

Where  a  note  is  executed  in  payment  of  corporate  stock  which  is 
to  be  delivered  upon  the  execution  and  delivery  or  upon  payment 
of  note,  action  will  not  lie  thereon  until  the  stock  has  been  de- 
livered or  tendered  to  the  maker.9 

In  an  action  involving  separable  claims,  the  right  to  try  those  on 
which  a  cause  of  action  has  accrued  is  not  affected  by  the  fact  that 
the  suit  is  prematurely  brought  as  to  the  others.10 

Interest  payable  at  an  annual  rate  will  be  presumed  to  be  pay- 
able annually.11 

Default  in  the  payment  of  interest  will  authorize  the  exercise  of 
the  right  given  by  an  acceleration  clause.12 

Where  the  devisee  sued,  before  the  will  was  probated,  to  set  aside 
a  deed  of  testator,  alleged  to  have  been  procured  while  he  was  of 
unsound  mind,  and  after  the  will  was  probated  filed  an  amended  and 
supplementary  petition,  on  which  the  case  was  tried,  the  objection 
that  the  action  was  prematurely  brought  became  immaterial.13 

tra tor's  bond,  though  there  has  been  no  final  accounting  in  county  court,  in 
view  of  Rev.  Laws  1910,  §  6350.  United  States  Fidelity  &  Guaranty  Co.  v. 
Clutter  (Okl.)  179  P.  754. 

s  Alwood  v.  Harrison  (Okl.)  171  P.  325. 

8  Cline  v.  First  Nat.  Bank  (Okl.)  170  P.  472. 

Though,  under  the  mechanic's  lien  law,  a  party  is  not  liable  to  an  action 
by  the  contractor  until  the  expiration  of  60  days  from  the  completion  of  the 
work,  yet,  if  the  action  is  brought  within  the  60  days,  and  the  defendant,  in- 
stead of  making  objection  by  proper  motion  or  plea  which  can  be  determined 
before  the  merits  of  the  case  are  tried,  presents  issues  on  the  merits,  and  in- 
cludes within  his  denial  a  counterclaim  for  damages,  and  also  claims  a 
set-off,  and  asks  for  a  judgment,  and  proceeds  to  trial,  he  cannot  thereafter 
be  heard  to  assert 'that  the  action  was  prematurely  brought.  Fulkerson  v. 
Kilgore,  64  P.  5,  10  Okl.  655. 

10  Anthony  v.  Smithson,  78  P.  454,  70  Kan.  132. 

11  F.  B.  Collins  Inv.  Co.  v.  Sanner,  142  P.  318,  42  Okl.  634. 

12  Where  a  note  provided  for  interest  payable  annually  at  7  per  cent,  before 
maturity  and  10  per  cent,  after  maturity,  the  7  per  cent,  being  evidenced  by 
coupon  notes,  and  where  the  mortgage  provided  that  on  default  the  hold- 
er of  the  note  and  mortgage  could  declare  the  whole  amount  and  interest  due, 
failure  to  pay  an  interest  coupon  was  a  breach  of  the  conditions  of  the  mort- 
gage warranting  foreclosure.     Flesher  v.  Hubbard,  132  P.  1080,  37  Okl.  587; 
Jones  v.  Same,  132  P.  1082,  37  Okl.  592. 

Where  a  debt  is  evidenced  by  notes  payable  in  one,  two,  and  thvee  years,  iii- 

is  Bethany  Hospital  Co.  v.  Philippi,  107  P.  530,  82  Kan.  64,  30  L.  R.  A. 
iN.  S.)  194. 

(307) 


§§    447-448  COMMENCEMENT  OF  ACTION  (Gl.  9 

After  a  mortgagee's  exercise  of  an  option  making  the  whole 
amount  secured  immediately  due  on  default  in  principal  or  interest 
by  filing  an  action  of  foreclosure,  an  offer  by  the  makers  of  the 
notes  and  the  mortgage,  or  purchasers  from  them,  to  pay  the 
amounts  in  default,  is  not  a  lawful  tender,  sufficient  to  support  a 
plea  of  tender,  since  the  whole  of  the  debt  became  due  by  the  exer- 
cise of  the  option.14 

A  mortgage  provision  that  on  default  in  the  principal  or  interest 
the  whole  amount  secured  should  be  "immediately  due"  and  payable 
at  the  holder's  option  means  immediately  upon  or  after  holder's 
election,  and  does  not  bind  him  to  elect  immediately  after  default, 
and  renders  notes  due  for  purpose  of  foreclosure  and  for  all  pur- 
poses, which  option  exists  while  default  continues,  and  is  not 
waived  by  mere  delay  not  benefiting  mortgagee  nor  detrimental  to 
'mortgagor.15 

Where  a  mortgage  provides  that  the  whole  debt  shall  become 
due  at  the  option  of  the  mortgagee  for  default  in  payment  of  taxes, 
a  tax  sale  of  the  mortgaged  property  does  not  entitle  the  mortgagee 
to  foreclose,  where  all  taxes  and  interest  have  been  thereafter 
fully  paid  by  the  mortgagors  and  notice  given  to  the  mortgagee 
before  suit.16 

§  448.    Insurance 

When  an  insurance  policy  provided  that  the  loss  should  not  be- 
come payable  until  60  days  after  proof  and  adjustment  of  loss,  in- 
cluding an  award  of  arbitration  when  arbitration  has  been  required, 
suit  cannot  be  brought  until  after  60  days  after  proof  of  loss  was 
furnished.17 

In  an  action  on  a  policy  providing  that  the  insurer  shall  not  be 
liable  until  60  days  after  notice  and  proof  of  loss,  where  a  suit  is 
brought  within  60  days  after  such  proof,  and  after  the  60  days 

terest  payable  annually,  and  a  mortgage  provides  that,  on  default  of  any  part 
of  the  debt,  the  holder  may  sell  the  property  on  default  in  principal  and  inter- 
est on  the  first  note  and  in  annual  interest  on  the  others,  the  holder  may  fore- 
close. F.  B.  Collins  Inv.  Co.  v.  Sanner,  142  P.  318,  42  Okl.  634. 

i*  Damet  v.  ^Etna  Life  Ins.  Co.  (Okl.)  179  P.  760,  5  A.  L,  R.  434. 

IB  Damet  v.  ^Etna  Life  Ins.  Co.  (Okl.)  179  P.  760,  5  A.  L.  R.  434. 

is  Fleming  v.  Franing,  98  P.  961,  22  Okl.  644,  22  L.  R.  A.  (N.  S.)  360,  132 
Am.  St.  Rep.  658. 

if  Dixon  v.  State  Mutual  Ins.  Co.,  126  P.  794,  34  Okl.  624,  L.  R.  A.  1915F, 
1210. 

(308) 


Art.  1)  ACCRUAL  OF  CAUSE  §§  449-450 

plaintiff  amends  his  petition,  and  the  insurer  files  an  answer,  the 
action  is  maintainable  on  the  amended  petition.18 

§  449.     Waiver 

Objection  that  suit  is  prematurely  brought  is  waived  unless 
presented  to  the  trial  court,  either  by  demurrer  or  answer.19 

§  450.     Cure  of  defect 

Nonexistence  of  a  cause  of  action  when  suit  is  brought  is  a  fatal 
defect  which  cannot  be  cured  by  accrual  of  cause  while  suit  is  pend- 
ing.20 

is  Oklahoma  Fire  Ins.  Co.  v.  Mundel,  141  P.  415,  42  Okl.  270. 

Where  an  action  was  brought  before  the  expiration  of  60  days  allowed  by 
the  policy  after  proof  of  loss,  but  plaintiff  thereafter  amended  his  petition, 
stowing  the  presentation  of  proof  of  loss,  and  that  the  60  .days  had  elapsed, 
and  where  the  insurer  then  answered,  denying  liability,  held  that  the  action 
was  maintainable  on  the  amended  petition,  as  against  an  objection  that  it  was 
prematurely  brought.  Western  Reciprocal  Underwriters'  Exchange  v.  Coon,  38 
Okl.  453,  134  P.  22. 

is  Egan  v.  Vowell  (Okl.)  167  P.  205. 

The  objection  that  the  action  is  brought  before  the  expiration  of  60  days 
from  the  completion  of  the  work  is  waived  if  defendant  proceeds  to  trial  on 
the  merits.  El  Reno  Electric  Light  &  Telephone  Co.  v.  Jennison,  50  P.  JL44,  5 
Okl.  759. 

20  iBank  of  Chelsea  v.  School  Dist.  No.  1,  Rogers  County,  62  Okl.  185,  162 
P.  809. 

(309) 


COMMENCEMENT  OP  ACTION  (Ql.  9 


ARTICLE  II 

PROCESS 

Sections  DIVISION  I.-lN  GENERAL 

451.  Definition. 

452.  Style  of  process. 

453.  Necessity  and  use  of  process. 

454.  Issuance  of  summons. 

455.  To  another  county. 

456.  Praecipe — Form. 

457.  Form  and  requisites. 

458.  Indorsements. 

459.  Alias  summons. ' 

460.  Abuse  of  process. 

DIVISION  II.— SERVICE  AND  RETURN 

461.  In  general. 

462.  Indorsement. 

463.  Acceptance  of  service  and  appearance. 

464.  By  whom  served. 

465.  Service  on  only  part  of  defendants. 

466.  Effect  of  judgment. 

467.  Manner  of  service. 

468.  Validity  and  effect  of  service. 

469.  Service  out  of  state. 

470.  Service  on  corporation. 

471.  On  foreign  corporation. 

472.  On  insurance  company. 

473.  Insurance  commissioner. 

474.  Insurance  board. 

475.  On  railroad  company  and  stage  line — Agent. 

476.  Where  no  agent  appointed. 

477.  Where  personal  service  impossible. 

478.  Actions  against  counties. 

479.  Service  on  infant. 

480.  Service  on  sheriff. 

481.  On  inmates  of  hospitals  for  insane. 

482.  Notice  or  process  issued  by  state  board  of  arbitration. 

483.  County  court. 

484.  Return. 

485.  Fees. 

48G.  Collusiveness. 

487.  Entering  return. 

488.  Evidence  of  service. 

489.  Forms. 

DIVISION   III.— SERVIQE   BY  PUBLICATION 

490.  In  general. 

491.  Service  by  publication — When  authorized. 

492.  In  what  actions  authorized. 

493.  On  whom  authorized. 

(310) 


Art.  2)  PROCESS  §§  451-453 

Sections 

494.  Unknown  heirs  or  devisees. 

405.    Affidavit — Forms. 

496.  Divorce. 

497.  Order. 

498.  Publication  notice — Form. 

499.  Mailing  with  petition. 

500.  Proof  of  publication. 

DIVISION  IV.— EXEMPTION  FROM  SERVICE 

501.  Persons    attending    court — Witnesses. 

DIVISION   V.— OBJECTIONS  AND  AMENDMENTS 

502.  Motion  to  Quash — Form. 

503.  Amendment. 

504.  Where    service   by   publication. 

505.  Waiver  of  objections. 

DIVISION  I. — IN  GENERAL 
§  451.     Definition 

Process  in  its  broadest  sense  comprehends  all  proceedings  to  the 
accomplishment  of  an  end,  including  judicial  proceedings.  Fre- 
quently its  signification  is  limited  to  the  means  of  bringing  a  party 
into  court.  Jn  the  Constitution  process  which  at  the  common  law 
would  have  run  in  the  name  of  the  king  is  intended.  In  the  Code 
process  issued  from  a  court  is  meant.21 

§  452.     Style  of  process 

"The  style  of  all  process  shall  be:  'The  State  of  Oklahoma.'  It 
shall  be  under  the  seal  of  the  court  from  whence  the  same  shall 
issue,  shall  be  signed  by  the  clerk,  and  dated  the  day  it  is  issued."  22 

§  453.     Necessity  and  use  of  process 

Process  is  necessary  to  jurisdiction.  It  is  indispensable,  to  give 
a  court  jurisdiction  in  attachment  proceedings,  that  there  should  be 
personal  service  of  the  summons  in  the  action  upon  the  defendant, 
or  that  the  order  of  attachment  be  levied  upon  property  of  the 
defendant,  or  that  an  order  of  garnishment  should  be  served  upon 
a  garnishee  having  property  in  his  possession  belonging  to  the  de- 
fendant, or  who  is  indebted  to  such  defendant,  otherwise  any  pro- 

21  McKenna  v.  Cooper,  101  P.  662,  79  Kan.  847. 

22  Rev.  Laws  1910,  §  5319. 

"The  style  of  all  writs  and  processes  shall  be  The  State  of  Oklahoma.' " 
Const.  Okl.  art  7,  §  19. 


§§    453-454  COMMENCEMENT  OF  ACTION  (Ch.  9 

ceedings  taken  in  the  cause  are  coram  non  judice  and  void,  and  the 
cause  must  be  dismissed.23 

Defendants  in  a  foreclosure  proceeding  are  by  the  original  sum- 
mons brought  into  court  for  every  purpose  connected  with  the  case, 
and  are  bound  to  take  notice  of  all  following  proceedings  so  that 
a  summons  on  a  cross-petition  for  foreclosure  of  a  second  mort- 
gage is  unnecessary.24 

Where  a  prsecipe  for  summons  and  the  petition  were  not  signed 
by  the  party  or  his  attorney,  it  is  not  necessary,  on  amendment;  to 
issue  new  summons.25 

Where  service  is  had  by  publication  in  an  action  to  quiet  a  title 
founded  upon  a  tax  deed,  filed  with  the  petition,  which  is  void  on 
its  face,  it  is  error  to  allow  amendment  of  the  petition  by  sub- 
stituting a  valid  deed,  without  any  notice  to  defendant,  and  then 
to  render  judgment  against  him  as  for  default  on  the  amended  peti- 
tion.26 

§  454.     Issuance  of  summons 

"All  writs  and  orders  for  provisional  remedies,  and  process  of 
every  kind,  shall  be  issued  by  the  clerks  of  the  several  courts,  upon 
a  praecipe  filed  with  the  clerk  demanding  the  same.'V7 

"The  summons  shall  be  issued  by  the  clerk  upon  a  written  prse- 
cipe filed  by  the  plaintiff ;  shall  be  under  the  seal  of  the  court  from 
which  the  same  shall  issue,  shall  be  signed  by  the  clerk,  and  shall  be 
dated  the  day  it  is  issued.  It  shall  be  directed  to  the  sheriff  of 
the  county,  and  command  him  to  notify  the  defendant  or  defend- 
ants, named  therein,  that  he  or  they  have  been  sued,  and  must 
answer  the  petition  filed  by  the  plaintiff,  giving  his  name,  at  a  time 
stated  therein,  or  the  petition  will  be  taken  as  true  and  judgment^ 
rendered  accordingly ;  and  where  the  action  is  on  contract  for  the 
recovery  of  money  only,  there  shall  be  indorsed  on  the  writ  the 
amount,  to  be  furnished  in  the  prsecipe,  for  which,  with  interest, 
judgment  will  be  taken,  if  the  defendant  fail  to  answer.  If  the  de- 

28  Central  Loan  &  Trust  Co.  v.  Campbell  Commission  Co.,  49  P.  48,  5  Okl. 
396,  judgment  reversed  19  S.  Ct.  346,  173  U.  S.  84,  43  L.  Ed.  623. 
z*  Lawson  v.  Rush,  101  P.  1009,  80  Kan.  262. 
ssManspeaker  v.  Bank  of  Topeka,  46  P.  1012,  4  Kan.  App.  768. 

26  Wood  v.  Nicolson,  23  P.  587,  43  Kan.  461. 

27  Rev-  Laws  1910,  §  5328. 

(312) 


Art.  2)  PROCESS  §§  454-455 

fendant  fail  to  appear,  judgment  shall  not  be  rendered  for  a  larger 
amount  and  the  costs."  28 

The  statute  does  not  require  the  summons,  where  personal  serv- 
ice is  had,  to  describe  the  real  estate,  nor  what  kind  of  judgment 
will  be  rendered.29  It  does  not  require  summons  in  foreclosure 
suit,  where  personal  service  has  been  had,  to  advise  defendant  of 
nature  of  action  and  kind  of  judgment  that  will  be  rendered,  nor 
is  it  necessary  to  indorse  on  the  writ  the  amount  for  which,  with 
interest,  default  judgment  will  be  taken.30 

§  455.     To  another  county 

"Where  the  action  is  rightly  brought  in  any  county,  a  summons 
shall  be  issued  to  any  other  county  against  any  one^or  more  of  the 
defendants,  at  the  plaintiff's  request."  31 

To  justify  the  issuance  of  a  summons  to  a  foreign  county  and 
the  service  of  the  same  on  a  defendant  residing  or  found  there, 
the  action  must  be  rightly  brought  and  the  person  sued  must  be 
rightly  joined  as  a  defendant.32 

If  service  of  summons  is  not  legally  obtained  6n  one  of  several 
defendants  in  the  county  where  action  is  brought,  a  summons  can- 
as  Rev.  Daws  1910,  §  4705. 

29  Horton  v.  Haines,  102  P.  121,  23  Okl.  878. 

Endorsement  is  unnecessary,  where  suit  is  not  for  recovery  of  money  only. 
Id. 

so  Littlefield  v.  Brown  (Okl.)  172  P.  643. 

si  Rev.  Laws  1910,  §  4706. 

Where  action  is  rightfully  commenced  in  any  county,  summons  may  issue  to 
any  other  county  and  be  there  served  on  one  or  more  defendants.  Oklahoma 
City 'Nat.  Bank  v.  Ezzard,  58  Okl.  251,  159  P.  267,  L.  R.  A.  1918A,  411;  Hem- 
brow  v.  Winsor,  125  P.  22,  87  Kan.  714. 

Where  nonresident  insurance  company  is  sued  in  county  where  plaintiff  re- 
sides, summons  to  another  defendant  held  properly  issued  to  any  other  coun- 
ty. Haynes  v.  City  Nat.  Bank  of  Lawton,  121  P.  182,  30  Okl.  614. 

In  action  against  guardian  for  diversion  of  trust  fund  and  to  fix  trust  on 
land  {purchased  therewith  in  his  wife's  name,  properly  brought  in  county 
where  land  was,  where  jurisdiction  was  obtained  on  one  defendant,  a  sum- 
mons could  be  served  on  other  defendant  in  another  county,  warranting  estab- 
lishment of  a  lien  against  land.  Clingman  v.  Hill,  104  Kan.  145,  178  P.  243. 

Where  an  action  is  brought  against  several  defendants,  alleging  that  they 
are  jointly  liable  for  causing  the  illegal  arrest  and  imprisonment  of  the  plain- 
tiff, and  summons  is  served  upon  one  defendant  in  the  county  where  the  ac- 
tion is  brought,  a  summons  may  be  issued,  to  any  other  county  against  code- 
fendants  residing  therein.  Reiffi  v.  Tressler,  120  P.  360,  86  Kan.  273. 

32  Marshall  v.  Saline  River  Land  &  Mineral  Co.,  89  P.  905,  75  Kan.  445;  Rull- 
man  v.  Hulse,  5  P.  176,  32  Kan.  598,  rehearing  denied  7  P.  210,  33  Kan. 

(313) 


§    456  COMMENCEMENT   OF  ACTION  (Ql.  9 

not  be  issued  thereon  to  any  other  county,  and  there  be  legally 
served  on  any  one  or  more  of  the  codefendants.33 

§  456.    .Praecipe — Form 

Defendant  cannot  object  that  summons  was  issued  by  the  clerk 
without  a  prsecipe  having  been  filed.34 

That  a  praecipe  for  summons  and  the  petition  were  not  subscribed 
by  the  party  or  his  attorney  does  not  oust  the  jurisdiction  where 
summons  was  issued  by  the  clerk,  and  personally  served  on  de- 
fendant.35 

The  issuance  of  a  summons  upon  a  prsecipe  filed  by  a  codefend- 
ant  is  not  an  error  of  which  defendant  can  complain,  nor  will  the 
jurisdiction  of  the  court,  after  due  service  of  the  summons,  be  af- 
fected by  reason  thereof.36 

PR^CIPE    FOR    SUMMONS 

In  the  District  Court  of  Tulsa  County,  State  of  Oklahoma. 
A.  B.,  Plaintiff,-  ] 

v.  L  No. . 

C.  D.,  Defendant.  J 

To  the  Clerk  of  Said  Court: 

Issue  summons  in  the  above  entitled  cause,  and  direct  the  same 
to  the  sheriff  of county,  state  of  Oklahoma,  for  the  defend- 
ant, C.  D. 

Amount  claimed,  $ and  interest  from  the  • —  day  of 

,  19 — ,  at per  cent,  per  annum. 

Action  brought  for . 

Defendants  required  to  answer  on  or  before  the  day  of 

10 

.    iy      . 


Make  summons  returnable day  of  ,  A.  D.  19 — . 

Dated  this  -        -  day  of  -      — ,  A.  D.  19—. 
X.  Y.,  Attorney  for  Plaintiff. 

670;  Wells  v.  Pattern,  33  P.  15,  50  Kan.  732;  New  Blue  Springs  Milling  Co.  v. 
De  Witt,  70  P.  647,  65  Kan.  665. 

33  Bearman  v.  Hunt  (Okl.)  171  P.  1124. 

34  Manspeaker  v.  Bank  of  Topeka,  46  P.  1012,  4  Kan.  App.  768. 
a  Bid. 

se  State  Life  Ins.  Co.  of  Indianapolis,  Ind.,  v.  Oklahoma  City  Nat.  Bank,  97 
P.  574,  21  Okl.  823. 

(314) 


Art.  2)  PROCESS  §§  457-458 

§  457.     Form  and  requisites 

A  paper  purporting  to  be  a  summons  which  is  not  signed  by 
the  clerk  of  the  district  court  is  invalid,37  as  is  one  not  authen- 
ticated by  the  seal  of  the  court.88 

A  summons  is  not  fatally  defective  by  reason  of  being  entitled 
in  the  court  of  P.  county,  and  directed  to  the  sheriff  of  P.  county, 
when  the  name  of  said  county  had  recently  been  changed.39 

A  summons,  issued  March  6th,  returnable  March  16th,  in  which 
defendant  is  required  to  answer  March  26th,  was  in  violation  of  the 
statute.40 

A  summons  issued  and  made  returnable  on  a  Sunday  or  a  legal 
holiday  does  not  limit  the  time  in  which  the  defendant  may  plead, 
as  it  is  returnable  on  the  day  stated,  and  the  effect  of  the  statute  is 
to  give  to  the  return  upon  the  next  business  day  the  same  validity 
as  if  made  on  the  designated  return  day.41 

§  458.     Indorsements 

The  failure  to  indorse  on  the  summons,  regular  in  other  respects, 
the  amount  for  which  judgment  will  be  taken  in  case  the  defendant 
fails  to  appear,  in  an  action  for  the  recovery  of  money  only,  does 
not  render  the  judgment  rendered  in  such  action  void,  so  that  its 
collection  may  be  enjoined.42  Such  judgment  is  voidable  only,  and 
not  absolutely  void.43 

ST  Lindsay  v.  Kearney  County  Cora'rs,  44  P.- 603,  56  Kan.  630. 

ss  Kelso  v.  Norton,  87  Jt.184,  74  Kan.  442;  McMurray  v.  Same,  87  P.  184,  74 
Kan.  442. 

Where  the  paper  purporting  to  be  a  copy  of  a  summons,  left  at  the 
usual  place  of  residence  of  the  defendant  by  the  sheriff,  fails  to  state  the 
name  of  the  plaintiff,  the  answer  day,  is  not  dated,  does  not  have  the 
name  of  -the  clerk  signed  thereto,  and  has  no  indication  of  a  seal  thereon,  it  is 
not  a  sufficient  notice  to  the  defendant  to  give  the  court  jurisdiction  over  his 
person.  Jones  v.  Marshall,  43  P.  840,  3  Kan.  App.  529. 

39  Nix  v.  Gilmer,  50  P.  131,  5  Okl.  740. 

40  state  v.  Parks,  126  P.  242,  34  Okl.  335. 

4iHarn  v.  Missouri  State  Life  Ins.  Co.   (Okl.)   173  P.  214. 

A  summons  fixing  the  answer  day  falling  on  Sunday  is  a  valid  .summons, 
since  the  statute  fixes  the  time  for  filing  answer  on  the  succeeding  Monday. 
Harn  v.  Amazon  Fire  Ins.  Co.  (Okl.)  167  P.  473. 

Under  Rev.  Laws  1910,  §  2937,  whenever  any  act  of  a  secular,  nature,  other 
than  a  work  of  necessity  or  mercy,  is  to  be  performed  upon  a  particular  day 
which  falls  upon  a  holiday,  the  act  may  be  performed  upon  the  next  business 
day.  Tucker  v.  Thraves,  50  Okl.  691,  151  P.  598. 

42  Tootle  v.  Ellis,  65  P.  675,  63  Kan.  422,  88  Am.  St.  Rep.  246. 

A  petition  and  praecipe  were  filed,  and  a  summons  was  issued  by  the  clerk, 

43  Dusenberry  v.  Bennett,  53  P.  82,  7  Kan.  App.  123. 

(315) 


§§    458-461  COMMENCEMENT  OF  ACTION  (Ql.  & 

The  statute  is  sufficiently  complied  with  when  the  amount  ap- 
pears on  the  face  of  the  summons.44 

The  indorsement  of  a  summons  need  not  necessarily  be  signed  by 
the  clerk,  and  attested  with  the  seal  of  the  court.45 

§  459.     Alias  summons 

"When  a  writ  is  returned  'Not  summoned/  other  writs  may  be 
issued,  until  the  defendant  or  defendants  shall  be  summoned;  and 
when  defendants  reside,  in  different  counties,  writs  may  be  issued 
to  such  counties  at  the  same  time."  46 

Where  a  foreign  corporation  has  been  properly  brought  into  court 
by  service  of  a  summons  on  its  admitted  agent  for  service,  that  an 
alias  summons  is  unnecessarily  issued  and  served  on  a  person  not 
its  agent  does  not  nullify  the  previous  service.47 

§  460.    Abuse  of  process 

A  plaintiff  in  replevin,  who  does  not  pa/ticipate  in  a  malicious 
abuse  of  the  writ  by  the  officer,  is  not  liable  for  damages  resulting 
from  the  officer's  unlawful  acts.48 

A  sheriff  who  seeks  to  justify  a  seizure  of  property  under  process 
in  an  action  brought  against  him  by  a  stranger  to  the  writ,  wha 
claims  title  anterior  to  the  levy,  must  show,  if  he  acted  under  an 
execution,  that  it  was  issued  on  a  valid  judgment,  and  if  a  writ  of 
attachment,  that  the  party  at  whose  suit  it  issued  was  a  creditor 
of  the  defendant  named  therein.49 

DIVISION  II. — SERVICE  AND  RETURN 
§  461.     In  general 

"The  summons  shall  be  served  and  returned  by  the  officer  to- 
whom  it  is  delivered,  except  when  issued  to  any  other  county  than 

on  which  he  failed  to  indorse  the  amount  for  which  judgment  would  be  taken 
if  defendant  did  not  answer.  On  the  following  day  plaintiff  caused  a  sum- 
mons, properly  indorsed,  to  be  issued  and  served.  No  answer  or  demurrer 
having  been  filed,  plaintiff  moved  for  judgment,  when  defendant  objected  be- 
cause the  amount  claimed  was  not  indorsed  on  the  original  summons.  Held, 
that  if  the  first  summons  were  void,  the  second  was  good,  and  judgment  was 
properly  entered.  Simpson  v.  Rice,  Friedman  &  Markwell  Co.,  22  P.  1019,  4& 
Kan.  22. 

44  Thompson  v.  Pfeiffer,  56  P.  763,  60  Kan.  409. 

45  Abbey  v.  W.  B.  Grimes  Dry  Goods  Co.,  24  P.  426,  44  Kan.  415. 
4«  Rev.  Laws  1910,  §  4709. 

47  Supreme  Lodge  of  Heralds  of  Liberty  v.  Herrod,  141  P.  269,  42  Okl.  308. 

48  Wurmser  v.  Stone,  40  P.  993,  1  Kan.  App.  131. 

49  Mills  v.  Talbott,  64  P.  964,  63  Kan.  14. 

(316) 


Art.  2)  PROCESS  §§  461-465 

the  one  in  which  the  action  is  commenced,'  within  ten  days  from 
its  date ;  and,  when  issued  to  another  county  shall  be  made  return- 
able in  not  less  than  ten  nor  more  than  sixty  days  from  the  day 
thereof,  at  the  option  of  the  party  having  it  issued."  60 

The  words  "personal  service"  mean  actual  service  by  delivering 
to  a  person,  and  not  to  a  proxy.51 

Statutes  prescribing  the  manner  of  service  of  summons  are  man- 
datory and  must  be  strictly  complied  with.62 

§  462.     Indorsement 

"The  sheriff  shall  indorse  upon  every  summons,  order  of  arrest, 
or  for  the  delivery  of  property,  or  of  attachment  or  injunction,  the 
day  and  hour  it  was  received  by  him."  33 

§  463.    Acceptance  of  service  and  appearance 

"An  acknowledgment  on  the  back  of  the  summons,  or  the  volun- 
tary appearance  of  a  defendant,  is  equivalent  to  service."  5* 

§  464.     By  whom  served 

"The  summons  shall  be  served  by  the  officer  to  whom  it  is  di- 
rected, who  shall  indorse  on  the  original  writ  the  time  and  manner 
of  service.  It  may  also  be  served  by  any  responsible  citizen  of  the 
county  not  a  party  to  or  interested  in  the  action,  appointed  by 
the  officer  to  whom  the  summons  is  directed  or  by  the  court  in 
which  the  action  is  brought.  The  authority  of  such  person  shall 
be  endorsed  on  the  writ,  and  the  return  of  service  made  by  any 
person  so  appointed,  or  of  any  service  made  out  of  the  state,  shall 
be  verified  by  oath  or  affirmation  of  the  person  making  the  serv- 
ice." 55 

§  465.     Service  on  only  part  of  defendants 

"Where  the  action  is  against  two  or  more  defendants,  and  one 
or  more  shall  have  have  been  served,  but  not  all  of  them,  the  plain- 
tiff may  proceed  as  follows : 

"First.  If  the  action  be  against  defendants  jointly  indebted  upon 
.contract,  he  may  proceed  against  the  defendants  served,  unless 
the  court  otherwise  direct;  and  if  he  recover  judgment,  it  may  be 

BO  Rev.  Laws  1910,  §  4707. 

si  Thisler  v.  Little,  121  P.  1123,  86  Kan.  787. 

62  Sealey  v.  Smith  (Okl.)  197  P.  490. 

63  Rev.  Laws  ,1910,  §  5336. 

s*  Rev.  Laws  1910,  §  4714.  65  Rev.  Laws  1910,  §  4710. 

(317) 


§§    465-467  COMMENCEMENT  OF  ACTION  (Ch.  9 

entered  against  all  the  defendants  thus  jointly  indebted,  so  far 
only  as  that  it  may  be  enforced  against  the  joint  property  of  all, 
and  the  separate  property  of  the  defendants  served;  and  if  they 
are  subject  to  arrest,  against  the  persons  of  the  defendants  served. 

"Second.  If  the  action  be  against  defendants  severally  liable,  he 
may,  without  pfejudice  to  his  rights  against  those  not  served,  pro- 
ceed against  the  defendants  served  in  the  same  manner  as  if  they 
were  the  only  defendants."  66  i 

Where  a  principal  and  sureties  on  a  note  are  sued  jointly  and 
the  principal  is  not  served,  the  action  may  proceed  against  such 
sureties  as  are  served,  without  service  on  or  dismissal  as  to  the 
principal.57 

§  466.    — -    Effect  of  judgment 

"Nothing  in  this  code  shall  be  so  construed  as  to  make  a  judg- 
ment, against  one  or  more  defendants  jointly  or  severally  liable, 
a  bar  to  another  action  against  those  not  served."  58 

§  467.     Manner  of  service 

"The  service  shall  be  made  by  delivering  a  copy  of  the  summons 
to  the  defendant  personally  or  by  leaving  one  at  his  usual  place  of 
residence  with  some  member  of  his  family  over  fifteen  years  of 
age,  at  any  time 'before  the  return  day."  59 

Leaving  a  copy  at  the  defendants'  usual  place  of  business  with 
his  business  manager  is  insufficient  to  confer  jurisdiction  of  his 
person.60 

Service  on  defendant  by  leaving  a  summons  at  a  house  where  he 
had  household  goods  stored  but  where  neither  he  nor  his  wife  had 
ever  lived,  though  his  wife  had  once  been  there  temporarily,  was 
void  because  not  at  his  residence.61 

66  Rev.  Laws  1910,  §  4730. 

57  Moorehead  v.  Daniels,  57  Okl.  298,  153  P.  623. 

88  Rev.  Laws  1910,  §  4731. 

59  Rev.  Laws  1910,  §  4711. 

Laws  1901,  c.  392,  §  1,  providing  that  summons  shall  be  issued  and  served 
on  defendants  personally,  if  residents  of  the  county,  refers  to  personal  serv^ 
ice  on  resident  defendants,  as  distinguished  from  constructive  service  by  pub- 
lication against  nonresident  defendants  and  service  by  leaving  a  copy  of  the 
summons  at  the  usual  place  of  residence  of  defendant  is  a  service,  within  ttie 
meaning  of  the  act.  Board  of  Com'rs  of  Atchison  County  v.  Challiss,  69  P. 
173,  65  Kan.  179. 

eo  Cohen  v.  Cochran  Grocery  Co.  (Okl.)  173  P.  642. 

6i  O'Neil  v.  Eppler,  133  P.  705,  90  Kan.  314. 

(318) 


Art.  2)  PROCESS  §§  467-469 

Service  by  delivering  a  copy  of  original  process  to  the  wife  of  a 
defendant,  who  had  left  the  state,  never  intending  to  return,  at 
his  last  place  of  residence  within  the  state,  did  not  give  the  court 
jurisdiction,  since,  after  he  has  removed,,  he  has  no  "usual  place 
of  residence"  within  the  state.62 

The  word  "service"  means  the  reading  thereof  to  the  person  to 
be  served,  or  the  delivery  to  such  person  of  the  original  or  a  copy 
thereof,  and  the  phrase  "service  of  a  notice,"  without  qualification, 
means  a  personal  service  of  a  written  notice.63 

§  468.     Validity  and  effect  of  service 

Generally  speaking,  neither  the  process  nor  the  action  taken 
under  it  will  be  adjudged  void  when  the  very  thing  which  ought 
to  be  done  is  specifically  commanded,  and  only  that  thing  is  in  fact 
done,64  at  least  in  the  absence  of  fraud.65 

When  original  summons  is  served,  defendants  are  in  court  for 
every  purpose  connected  with  the  action,  and  those  served  are 
bound  to  take  notice  of  the  filing  of  a  cross-petition  by  a  codefend- 
ant.66 

§  469.     Service  out  of  state 

"In  all  cases  where  service  may  be  made  by  publication,  per- 
sonal service  of  summons  may  be  made  out  of  the  state  by  the 
sheriff  or  his  deputy  of  the  county  in  which  such  service  may  be 
made.  Such  summons  shall  be  issued  by  the  clerk,  under  seal  of 
the  court,  and  directed  to  the  defendant  or  defendants  to  be 
served,  and  shall  notify  him  or  them  that  he  or  they  have  been 
sued  by  the  plaintiff  or  plaintiffs,  naming  him  or  them,  and  re- 
quiring him  or  them  to  answer  the  petition  filed  by  the  plaintiff 
or  plaintiffs  in  the  clerk's  office  of  the  court,  which  shall  be  named, 
within  sixty  days  from  the  day  of  service,  or  the  said  petition  will 
be  taken  as  true,  and  judgment  rendered  accordingly:  Provided, 

12  Amsbaugh  v.  Exchange  Bank,  5  P.  384,  33  Kan.  100. 

es  Clemmons  v.  State,  113  P.  238,  5  Okl.  Or.  119. 

64  Merwin  v.  Hawker,  1  P.  640,  31  Kan.  222. 

es  Where  defendant's  trip  to  Kansas  City,  Mo.,  where  he  was  served  with 
process,  was  not  induced  by  any  act  of  plaintiff,  a  mere  statement  by  plaintiff's 
attorney  that  the  contemplated  action  would  be  brought  in  Kansas  did  not  show 
that  the  service  in  Missouri  was  fraudulent.  McLain  v.  Parker,  129  P.  1140, 
88  Kan.  717,  judgment  affirmed  on  rehearing  131  P.  153,  88  Kan.  873. 

«a  Littlefield  v.  Brown  (Okl.)  172  P.  643. 

(319) 


§§    469-470  COMMENCEMENT  OF  ACTION  (Ch.  9 

that  such  service  shall  have  the  same  force  and  effect  as  service  ob- 
tained by  publication,  and  no  other  or  greater  force  or  effect."  67 

That  such  personal  service  may  be  had  on  a  nonresident,  it  is 
essential  that  the  requisite  affidavit  be  filed,  summons  be  issued, 
and  served,  and  due  proof  of  such  service  be  made.88 

The  state  has  full  power  over  all  persons  and  things  within  its 
jurisdiction,  but  cannot  extend  its  process  beyond  its  boundaries.69 

In  action  against  nonresident  to  determine  an  interest  in  realty 
in  the  state,  personal  service  out  of  state  gives  the  court  jurisdic- 
tion, not  defeated  because  the  petition  unites  another  separate  cause 
of  action  in  which  such  service  would  not  confer  jurisdiction.70 

§  470.     Service  on  corporation 

"A  summons  against  a  corporation  may  be  served  upon  the 
president,  mayor,  chairman  of  the  board  of  directors,  or  trustees, 
or  other  chief  officer,  or  upon  an  agent  duly  appointed  to  receive 
service  of  process ;  or,  if  its  chief  officer  is  not  found  in  the  county, 
upon  its  cashier,  treasurer,  secretary,  clerk  or  managing  agent; 
or,  if  none  of  the  aforesaid  officers  can  be  found,  by  a  copy  left  at 
the  office  or  usual  place  of  business  of  such  corporation,  with  the 
person  having  charge  thereof."  71 

The  prescribed  statutory  method  of  serving  process  upon  a  cor- 
poration is  exclusive  and  must  be  followed.72 

Service  on  a  corporation  is  limited  to  the  class  of  officers  and 
agents  specified  in  this  statute.73 

Where  service  is  actually  made  on  the  proper  officer  or  agent  of 
a  corporation  a  return,  failing  to  show  this  fact,  may  be  amended.74 

87  ReV.  Laws  1910,  §  4727. 

es  First  State  Bank  of  Addington  v.  La  timer,  48  Okl.  104,  149  P.  1099; 
Adams  v.  Baldwin,  31  P.  681,  49  Kan.  781. 

69  Howell  v.  Manglesdorf,  5  P.  759,  33  Kan.  194. 
TO  Culver  v.  Diamond,  64  Okl.  271,  167  P.  223. 

71  Rev.  Laws  1910,  §  4715. 

72  Shawnee  Tecumseh  Traction  Co.  v.  Webster  (Okl.)  174  P.  266. 

A  service  of  summons  upon  a  director  of  a.  domestic  corporation,  other  than 
the  chairman  of  the  board,  is  unauthorized  by  Comp.  Laws  1909,  §  5604;  it  not 
appearing  in  the  return  that  he  occupied  any  office  named  in  the  section, 
though  the  return  recites  that  the  director  was  the  highest  officer  of  the  de- 
fendant to  be  found  in  the  county.  Oklahoma  Fire  Ins.  Co.  v.  baroer  Asphalt 
Paving  Co.,  125  P.  734,  34  Okl.  149.  A  director  is  not  a  "chief  officer"  or  "man- 
aging agent"  of  a  domestic  corporation,  within  Comp.  Laws  1909,  §  5604,  and 
service  of  summons  cannot  be  made  by  delivery  of  a  copy  to  him.  id. 

73  M.  Rumely  Co.  v.  Bledsoe,  56  Okl.  180,  155  P.  872. 

74  Id. 

(320) 


Art.  2)  PROCESS  §§  470-471 

When  service  is  not  made  on  one  of  the  chief  officers  named,  the 
return  must  show  why  the  service  was  not  so  made.75  It  is  not 
ordinarily  required  that  the  officer  shall  state  the  degree  of  dili- 
gence in  attempting  to  find  the  chief  officer  of  the  defendant  or 
execute  process.70 

Where  the  service  is  not  on  the  chief  officer,  the  return  must 
show  that  he  could  not  be  found  in  the  county.77 

§  471.    On  foreign  corporation 

"In  all  cases  where  a  cause  of  action  shall  accrue  to  a  resident  or 
citizen  of  the  state  of  Oklahoma,  by  reason  of  any  contract  with  a 
foreign  corporation  doing  business  in  this  state,  or  where  any 
liability  on  the  part  of  such  foreign  corporation  shall  accrue  in 
favor  of  any  citizen  or  resident  of  this  state,  whether  in  tort  or 
otherwise,  and  such  foreign  corporation  has  not  designated  an 
agent  in  this  state  upon  whom  process  may  be  served  or  has  not  an 
officer  continuously  residing  in  this  state,  upon  whom  summons 
or  other  process  may  be  served  so  as  to  authorize  a  personal  judg- 
ment, service  of  summons  or  other  process  may  be  had  upon  the 
secretary  of  state,  and  such  service  shall  be  sufficient  to  give  ju- 
risdiction of  the  person  to  any  court  in  this  state  having  jurisdic- 
tion of  the  subject-matter,  whether  sitting  in  the  county  where 
the  secretary  of  state  is  served  or  elsewhere  in  the  state."  78 

75  St.  Louis  &  S.  F.  R.  Co.  v.  Reed,  59  Old.  95,  158  P.  399. 
'e  Levy  v.  Tradesmen's  State  Bank  (Okl.)  176  P.  512. 

77  Ozark  Marble  Co.  v.  Still,  103  P.  586,  24  Okl.  559. 

Under  Rev.  Laws  1910,  §  4715,  return  of  service  on  domestic  corporation, 
which  shows  that  president  was  not  found  in  county  and  that  writ  was  serv- 
ed on  managing  agent,  is  sufficient.  Colonial  Refining  Co.  v.  Lathrop,  64 
Okl.  47,  166  P.  747,  L.  R.  A.  1917F,  890. 

A  return  on  a  summons,  showing  date  of  its  receipt  and  that  the  officer  ex- 
ecuted the  same  "in  my  county,"  by  leaving  a  true  copy  with  the  cashier  of 
the  defendant  national  bank,  naming  him,  "President  not  in  the  county,"  held 
a  sufficient  return  showing  service,  as  required  by  Comp.  Laws  1909,  §  5604. 
First  Nat.  Bank  of  Tishomingo  v.  Latham,  132  P.  891,  37  Okl.  286;  Same  v. 
Ingle,  132  P.  895,  37  Okl.  276. 

A  summons  in  error  against  a  corporation  served  on  its  secretary  without 
any  showing  that  the  other  chief  officer  could  not  be  found  in  the  county  was 
invalid.  Cunningham  Commission  Co.  v.  Rorer  Mill  &  Elevator  Co.,  105  P.  676, 
25  Okl.  133. 

78  Rev.  Laws  1910,  §  13b9. 

Statute  held  valid.  Title  Guaranty  &  Surety  Co.  v.  Slinker,  143  P.  41,  42 
Okl.  811. 

The  phrase  "transacting  business"  means  the  doing  of  a  series  of  acts  to 
secure  livelihood,  profit,  or  pleasure,  not  merely  the  doing  of  a  single  act.  Ful- 

HON.PL.&  PRAC.—21  (321) 


§    471  COMMENCEMENT  OF  ACTION  (Ch.  9 

The  various  methods  provided  by  the  statute  for  obtaining  serv- 
ice on  foreign  corporations  are  cumulative.79  Where  a  foreign 
corporation  has  appointed  a  service  agent,  service  must  be  made 
upon  such  agent,  and  service  on  a  local  agent  or  manager  is  insuf- 
ficient.80 

The  agent  may  be  served  either  by  delivering  a  copy  of  the  sum- 
mons to  him  personally  or  by  leaving  the  same  at  his  usual  place 
of  residence.81 

Summons  issued  for  defendant  corporation  and  served  upon  the 
secretary  of  state,  in  the  absence  of  a  showing  that  defendant  had 
either  a  service  agent  or  an  officer  in  the  state  upon  whom  process 
could  be  had,  was  sufficient.82  Service  of  summons  upon  a  fore- 
man of  a  pipe  line  company,  a  foreign  corporation,  is  unauthorized 
by  statute,  and  void.83 

The  appointment  of  an  agent  to  transact  the  company's  business 
is  not  "doing  business"  within  the  meaning  of  the  statute.84  But 

ler  v.  Allen,  46  Okl.  417,  148  P.  1008.  A  contract  to  sell  machines  to  be  used 
or  sold  in  the  state  by  the  purchaser,  and  to  furnish  other  machines  f.  o.  b.  at 
the  place  of  business  of  the  seller,  a  foreign  corporation,  held  not  "transacting 
business"  within  the  state,  within  Rev.  Laws  1910,  §§  1335-1339.  Id. 

79  Continental  Ins.  Co.  v.  Hull,  38  Okl.  307,  132  P.  657. 

so  Waters  Pierce  Oil  Co.  v.  Foster,  52  Okl.  412,  153  P.  169. 

Where  a  foreign  corporation,  other  than  a  railroad  or  stage  company,  has 
complied  with  the  statute  and  has  appointed  an  agent  in  .this  territory  for 
service  of  process,  with  his  office  and  principal  place  of  business  at  an  acces- 
sible point  in  the  territory,  service  of  process^must  be  made  upon  such  agent 
and  service  on  any  other  person  is  irregular.  Bes  Line  Const.  Co.  v.  Schmidt, 
85  P.  711,  16  Okl.  429;  Same  v.  Taylor,  85  P.  713,  16  Okl.  481. 

81  State  Life  Ins.  Co.,  of  Indianapolis,  Ind.,  v.  Oklahoma  City  Nat.  Bank,  97 
P.  574,  21  Okl.  823. 

82  Municipal  Paving  Co.  v.  Herring,  50  Okl.  470,  150  P.  1067. 

ss  Gulf  Pipe  Line  Co.  v.  Vanderberg,  115  P.  782,  28  Okl.  637,  34  L.  R.  A.  (N. 
S.)  661,  Ann.  Cas.  1912D,  407. 

s*  Verdigris  River  Land  Co.  v.  Stanfield,  105  P.  337,  25  Okl.  265. 

Not  "doing  business."  Where  a  domestic  mercantile  corporation  contracts 
with  a  foreign  manufacturing  corporation  to  purchase  the  latter's  goods,  and 
to  sell  them  within  the  state,  it  does  not  constitute  "doing  business"  by  the 
nonresident  corporation,  and  service  of  summons  on  the  domestic  corporation 
is  not  service  on  the  foreign  corporation.  Harrell  v.  Peters  Cartridge  Co.,  129 
P.  872,  36  Okl.  684,  44  L.  R.  A.  (N.  S.)  1094.  The  sending  of  traveling  agents 
into  the  state  by  a  foreign  manufacturing  corporation  to  advertise  its  goods 
and  assist  the  agents  of  a  domestic  mercantile  corporation  in  selling  them 
does  not  constitute  "doing  business"  within  the  state,  and  service  of  summons 
on  the  secretary  of  state  is  not  a  valid  service  on  the  foreign  corporation.  Id. 

A  foreign  corporation  engaged  in  buying  used  automobiles  and  rebuilding  and 
selling  them,  which  contracted  with  a  resident  to  canvass  for  purchasers  anO 
forward  orders  to  corporation  at  Pittsburgh  to  be  filled  by  delivery  f.  o.  b., 

(322) 


Art.  2)  PROCESS  §§  471-473 

furnishing  him  with  goods  to  be  sold  and  which  were  sold  in  the 
state  is  "doing  business"  in  the  state.85 

Where  a  foreign  surety  company  collected  the  premiums  on 
bonds  executed  prior  to  statehood  and  continued  such  bonds  in 
force,  it  was  "doing  business"  in  the  state,  within  this  statute.80 

A  foreign  corporation  engaged  in  interstate  commerce  within  the 
state  with  a  resident  thereof  is  not  subject  to  this  statute.87 

The  prosecution  of  an  action  for  debt  by  a  foreign  corpora- 
tion in  a  state  court  is  not  transacting  business.88 

§  472.    On  insurance  company 

"Where  the  defendant  is  an  incorporated  insurance  company, 
and  the  action  is  brought  in  a  county  in  which  there  is  an  agency 
thereof,  the  service  may  be  upon  the  chief  officer  of  such  agen- 
cy." 89 

§  473.     •  Insurance  commissioner 

"Every  foreign  insurance  company  shall,  "by  duly  executed  in- 
strument filed  in  his  office,  constitute  and  appoint  the  insurance 
commissioner,  or  his  successor,  its  true  and  lawful  attorney,  upon 
whom  all  lawful  processes  in  any  action  or  legal  proceeding  against 
it  may  be  served  and  therein  shall  agree  that  any  lawful  process 
against  it,  which  may  be  served  upon  its  said  attorney,  shall  be 
of  the  same  force  and  validity  as  if  served  upon  the  company,  and 
that  the  authority  thereof  shall  continue  in  force,  irrevocable,  as 
long  as  any  liability  of  the  company  remains  outstanding  in  this 

was  not  "doing  business"  in  the  state.     Auto  Trading  Co.  v.  Williams  (Okl.) 
177  P.  583. 

Where  a  nonresident  corporation  contracted  with  a  resident  to  sell  and  de- 
liver f.  o.  b.  at  a  point  outside  the  state  certain  proprietary  njedicines  to  be 
shipped  into  the  state  and  resold  at  retail,  it  did  not  incur  the  penalty  prescrib- 
ed by  Rev.  Laws  1910,  §  1338.  Dr.  Koch  Vegetable  Tea  Co.  v.  Shumann,  139  P. 
1133,  42  Okl.  60. 

Nonresident  corporation,  which  contracted  with  citizen  of  state,  whereby  its 
products  were  sold  and  delivered  f.  o.  b.  at  point  outside  state,  to  be  sold  at  re- 
tail within  designated  territory,  held  not  doing  business  within  state.  J.  R. 
Watkins  Medical  Co.  of  Winona,  Minn.,  v.  Coombes  (Okl.)  166  P.  1072. 

ss  Bailey  v.  Parry  Mfg.  Co.,  59  Okl.  152,  158  P.  581. 
'**  Title  Guaranty  &  Surety  Co.  v.  Sliuker,  143  P.  41,  42  Okl.  811. 

ST  Hollister  v.  National  Cash  Register  Co.,  55  Okl.  214,  154  P.  1157;  Fruit 
Dispatch  Co,  v.  Wood,  140  P.  1138,  42  Okl.  79. 

ss  j.  p.  Bledsoe  &  Son  v.  W.  B.  Young  Supply  Co.,  44  Okl.  609,  145  P.  1125; 
Freeman-Sipes  Co.  v.  Corticelli  Silk  Co.,  124  P.  972,  34  Okl.  229. 

ss  Rev.  .Laws  1910,  §  4716. 

(323) 


§    473  COMMENCEMENT  OF  ACTION  (Oh.  9 

state.  Any  process  issued  by  any  court  of  record  in  this  state,  and 
served  upon  such  commissioner  by  the  proper  officer  of  the  county 
in  which  said  commissioner  may  have  his  office,  shall  be  deemed  a 
sufficient  process  on  said  company,  and  it  is  hereby  made  the  duty 
of  the  insurance  commissioner  to  promptly,  after  such  service  of 
process,  forward  by  registered  mail,  an  exact  copy  of  such  notice 
to  the  company;  or,  in  case  the  company  is  of  a  foreign  country, 
to  the  resident  manager  in  this  country;  and  also  shall  forward  a 
copy  thereof  to  the  general  agent  of  said  company  in  this  state. 
For  power  of  attorney,  each  company  shall  pay  a  fee  of  three  dol- 
lars, and  for  each  copy  of  process,  the  insurance  commissioner 
shall  collect  the  sum  of  three  dollars,  which  shall  be  paid  by  the 
plaintiff  at  the  time  of  such  service,  the  same  to  be  recovered  by 
him  as  a  part  of  the  taxable  cost,  if  he  prevails  in  his  suit."  90 

Every  fraternal  beneficiary  association  "now  doing  or  hereafter 
admitted  to  do  business  within  this  state,  and  not  having  its  prin- 
cipal office  within  this  state,  and  not  being  organized  under  the 
laws  of  this  state,  shall  appoint  in  writing  the  insurance  commis- 
sioner and  his  successor  in  office  to  be  its  true  and  lawful  attor- 
ney, upon  whom  all  legal  process  in  any  action  or  proceeding 
against  it  must  be  served,  and  in  such  writing  shall  agree  that 
any  lawful  process  against  it  which  is  served  on  said  insurance 
commissioner  shall  be  of  the  same  legal  force  and  validity  as  if 
served  upon  said  association,  and  that  the  authority  shall  remain  in 
force  as  long  as  any  liability  against  said  association  shall  remain 
outstanding  within  this  state.  Copies  of  such  certificate,  certified 
by  said  insurance  commissioner,  shall  be  deemed  sufficient  evi- 
dence thereof,  and  shall  be  admitted  in  evidence  with  the  same 
force  and  effect  as  the  original  thereof  might  be  admitted.  Serv- 
ice upon  said  insurance  commissioner  shall  be  deemed  sufficient 
service  upon  such  association:  Provided,  that  such  process  shall 
not  be  returnable  until  thirty  days  after  such  service.  When  legal 
process  against  any  such  association  is  served  upon  the  insurance 
commissioner  he  shall  immediately  notify  the  association  of  such 
service  by  registered  letter,  prepaid  and  directed  to  its  secretary 
or  its  corresponding  officer,  and  shall  within  two  days  after  such 
service  forward  in  the  same  manner  a  copy  of  the  process  served 
upon  him  to  such  officer.  The  plaintiff  in  the  action  upon  which 

ao  Sess.  Laws  1910-11,  p.  202,  §  1,  amending  Rev.  Laws  1910,  §  3422. 
(324) 


Art.  2)  PROCESS  §§  474-475 

such  process  was  issued  shall  pay  to  the  insurance  commissioner 
at  the  time  of  such  service  a  fee  of  three  dollars  which  shall  be  re- 
covered by  said  plaintiff  as  a  part  of  his  taxable  costs,  if  he  pre- 
vail in  his  said  action.  The  insurance  commissidner  shall  keep  a  rec- 
ord of  all  processes  served  upon  him,  which  record  shall  show  the 
day  and  hour  when  such  service  was  made,  and  when  the  notice 
hereinbefore  provided  for  was  given  to  the  officers  of  such  asso- 
ciation. In  all  suits  in  this  state  against  any  such  association 
organized  under  the  laws  of  this  state,  and  having  its  principal 
officer  in  this  state,  service  shall  be  had  upon  the  chief  executive 
officer  or  the  secretary,  or  corresponding  officer  of  such  associa- 
tion." 91 

§  474.    Insurance  board 

All  individuals,  partnerships  and  corporations  of  this  state  who 
shall  enter  into  contracts,  as  provided  by  law,  to  exchange  recip- 
rocal or  inter-insurance  with  each  other,  "shall  file  with  the  state 
insurance  board  an  instrument  in  writing,  executed  by  him  for 
said  subscribers,  conditioned  that,  upon  the  issuance  of  certificate 
of  authority  provided  for"  by  law,  "service  of  process  may  be  had 
upon  the  state  insurance  board  in  all  suits  in  this  state  arising  out 
of  such  policies,  contracts  or  agreements,  which  service  shall  be 
valid  and  binding  upon  all  subscribers  exchanging  at  any  time  re- 
ciprocal or  inter-insurance  contracts  through  such  attorney.  Three 
copies  of  such  process  shall  be  served,  and  the  state  insurance 
board  shall  file  one  copy,  forward  one  copy  to  said  attorney,  and 
return  one  copy  with  his  admission  of  service.  For  the  copy  of 
the  original  process  accepted  by  the  state  insurance  board  as  at- 
torney for  service,  a  fee  of  three  dollars  shall  be  collected  from  the 
plaintiff."  92 

§  475.    On  railroad  company  and  stage  line — Agent 

"Every  railroad  company  and  every  stage  company  doing  busi- 
ness in  this  state  or  having  agents  doing  business  therein  for  such 
company,  is  hereby  required  to  designate  some  person  residing 
in  each  county  into  which  its  railroad  line  or  stage  route  may  or 
does  run,  or  in  which  its  business  is  transacted,  on  whom  all  process 
and  notices  issued  by  any  court  of  record  or  justice  of  the  peace 
of  such  county  may  be  served."  83 

»i  Rev.  Laws  1910,  §  3490.  es  Rev.  Laws  1910,  §  4717. 

»2  Sess.  Laws  1915,  p.  472,  §  4. 

(325) 


'§   475  COlUklEXCEMENT  OF  ACTION  (Ch.  9 

"In  every  case  such  railroad  company  and  stage  company  shall 
file  a  certificate  of  the  appointment  and  designation  of  such  person, 
in  the  office  of  the  clerk  of  the  district  court  of  the  county  in  which 
such  person  resides;  and  the  service  of  any  process  upon  the  per- 
son so  designated,  in  any  civil  action,  shall  be  deemed  and  held 
to  be  as  effectual  and  complete  as  if  service  of  such  process  were 
made  upon  the  president  or  other  chief  officer  of  such  company. 
Any  railroad  company  or  stage  company  may  revoke  the  appoint- 
ment and  designation  of  such  person  upon  whom  process  may  be 
served,  as  hereinbefore  provided,  by  appointing  any  other  person 
qualified  as  above  specified,  and  filing  a  certificate  of  such  appoint- 
ment as  aforesaid;  but  every  second  or  subsequent  appointment 
shall  also  designate  the  person  whose  place  is  to  be  filled  by  such 
appointment."  94 

a*  Rev.  Laws  1910,  §  4718. 

A  railroad  company  ran  a  short  branch  of  its  line  from  L/.,  Kan.,  into  B. 
county,  for  a  distance  of  from  four  to  six  miles,  for  the  purpose  of  taking  up 
cattle  from  a  cattle  chute,  which  it  had  located  at  the  end  of  the  brand*.  No 
station  agent  was  located  at  the  end  of  the  line  or  at  the  cattle  chute.  The 
short  piece  of  track  was  managed  by  the  agent  at  L.  Passengers  were  not 
carried  for  hire  over  the  piece  of  track  referred  to.  No  freight  charges 
were  made  for1  carrying  the  cattle  upon  it.  The  trains  ran  irregularly,  and 
only  when  trains  of  cattle  were  to  be  shipped  from  the  territory;  and  these 
trains  were  billed  and  charged  for  from  L,.  No  depot  building  was  erected 
at  the  point  ref erred  io,  and  no  shelter  was  provided  for  passengers  or  freight, 
and  no  other  freight  was  carried  upon  the  line  except  cattle  received  at  the 
chute  mentioned.  The  point  is  not  referred  to  in  defendant  company's  print- 
ed lists  of  stations  or  time  schedules,  and  there  is  no  evidence  that  the  com- 
pany ever  intended  to  establish  a  station  there.  Code  Civ.  Proc.  §  68c,  au- 
thorizes service  of  process  by  leaving  a  true  copy,  at  any  depot  or  station  of 
such  company,  with  some  person  in  charge  thereof,  or  in  the  employ  of  such 
company.  Held,  that  service  on  the  conductor  who  has  charge  of  the 
cattle  train  at  the  point  in  question  is  not  such  a  service  as  will  be  deemed 
"complete  and  effectual."  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Groves,  54  P.  484,  7 
Okl.  315. 

An  action  against  a  railroad  company  for  injury  to  property  upon  the 
line  of  the  company  may  be  brought  in  any  county  through  or  into  which 
the  road  passes  (Civ.  Code,  §  50),  and,  when  rightly  brought,  the  summons 
may  be  issued  to  any  other  county  of  the  state  and  there  served  upon  the 
president  of  the  company  (Civ.  Code,  §§  60,  68).  Newberry  v.  Arkansas,  K.  & 
C.  Ry.  Co.,  35  P.  210,  52  Kan.  613. 

Civ.  Code,  §  68a,  provides  that  every  railroad  doing  business  in  this  state, 
or  having  agents  doing  business  therein  for  the  company,  is  required  to  desig- 
nate some  person  in  each  county  through  which  its  railroad  runs  or  its 
business  is  transacted  on  whom  process  and  notice  may  be  served.  Section 
68c  provides  that,  if  the  company  shall  fail  to  designate  a  person  as  required 

(326) 


Art.  2)  PROCESS  §§  475-476 

The  interests  of  a  federal  receiver  of  a  railroad  and  of  the  rail- 
road company  are  not  so  adverse  as  to  preclude  the  same  per- 
son from  acting  as  station  agent  for  the  purpose  of  serving  sum- 
mons upon  the  railroad  company  pursuant  to  the  laws  while  also 
acting  for  the  receiver.95 

§  476.    Where  no  agent  appointed 

"If  any  railroad  or  stage  company  failed  to  designate  or  appoint 
such  person,  as  provided  and  required  in  the  preceding  sections, 
such  process  may  be  served  on  any  local  superintendent  of  re- 
pairs, freight  agent,  agent  to  sell  tickets,  or  station  keeper,  of  such 
company,  in  such  county  or  such  process  may  be  served  by  leaving 
a  copy  thereof,  certified  by  the  officer  to  whom  the  same  is  directed 
to  be  a  true  copy,  at  any  depot  or  station  of  such  company  in  such 
county,  with  some  person  in  charge  thereof,  or  in  the  employ  of 
such  company,  and  such  service  shall  be  held  and  deemed  complete 
and  effectual."  96 

by  the  previous  section,  such  process  may  be  served  on  any  local  superintend- 
ent of  repairs,  freight  agent,  agent  to  sell  tickets  or  station  keeper  of  such 
company  in  the  county  in  which  the  action  is  brought,  or  such  process  may 
be  served  by  leaving  a  copy  thereof  at  any  depot  or  station  of  such  company 
in  such  county,  with  some  person  in  charge  thereof  or  in  the  employ  of  such 
company.  Defendant  railroad  company,  after  building  a  railroad,  leased  it 
to  another  company,  which  took  entire  charge  thereof.  Defendant  company 
thereafter  exercised  no  business  relations  in  the  state,  except  as  lessor  of 
such  railroad.  Held,  that  a  summons  left  with  a  station  agent  of  the  lessee 
company  in  charge  of  the  station  of  such  railroad  was  insufficient,  as  the 
lessor  company  was  not  doing  business  within  the  state,  within  the  meaning 
of  the  statute.  Le  Roy  &  C.  V.  A.  L.  R.  Co.  v.  Sidell,  63  P.  509,  62  Kan.  349. 

A  return  upon  a  summons  against  a  railroad  company  that  it  was  "served 
by  delivering  a  copy  thereof,  with  the  indorsements  thereon  duly  certified,  to 
Mr.  Fish,  agent  of  the  within  railroad  company,"  is  not  sufficient  evidence  of 
service,  as  it  fails  to  show  that  he  is  of  that  class  of  agents  on  whom  service 
may  be  made  under  Comp.  Laws,  c.  80,  §§  68,  68a,  and  chapter  81,  §  13.  Dick- 
erson  v.  Burlington  &  M.  R.  R.  Co.,  23  P.  936,  43  Kan.  702. 

»B  Missouri,  K.  &  T.  Ry.  Co.  v.. Hudson  (Okl.)  175  P.  743,  9  A.  L.  R.  223. 

»6  Rev.  Laws  1910,  §  4719. 

In  action  against  receivers  of  railroad,  held,  in  view  of  Rev.  Laws  1910,  § 
4719,  that  where  the  track  and  a  part  of  the  depot  platform  were  in  Latimer 
county,  while  the  depot  building,  in  which  the  depot  agent  resided,  was  in  Le 
Flore  county,  personal  service  on  the  agent  while  he  was  in  Latimer  coun- 
ty conferred  jurisdiction  on  the  court  of  that  county.  St.  Louis  &  S.  F.  R. 
Co.  v.  Mobley  (Okl.)  174  T.  510. 

Under  Rev.  Laws  1910,  §  4719,  service  of  summons  upon  the  superintendent 
of  a  railway  company  is  not  authorized,  it  not  appearing  that  he  was  in 

(327) 


§§    477-479  COMMENCEMENT  OF  ACTION  (Ql.  9 

§  477.     Where  personal  service  impossible 

"In  all  cases  where  service  of  any  process  cannot  be  had  per- 
sonally upon  the  person  designated  by  such  company,  service 
may  be  made  by  leaving-  a  certified  copy  of  such  process  at  the 
usual  place  of  residence  of  such  person,  or  as  in  the  last  preced- 
ing section,  and  the  same  shall  be  deemed  complete  and  effec- 
tual." 97 

§  478.     Actions  against  counties 

"In  all  legal  proceedings  against  the  county  process  shall  be  serv- 
ed on  the  county  clerk  as  the  clerk  of  the  board  of  county  commis- 
sioners, and  whenever  suit  or  proceedings  shall  be  commenced,  it 
shall  be  the  duty  of  the  clerk  forthwith  to  notify  the  county  attorney 
and  lay  before  the  board  of  county  commissioners  at  their  next 
meeting  all  the  information  he  may  have  in  regard  to  such  suit  or 
proceedings."  98 

§  479.     Service  on  infant 

"When  the  defendant  is  a  minor,  under  the  age  of  fourteen  years, 
the  service  must  be  upon  him  and  upon  his  guardian  or  father, 
or  if  neither  of  those  can  be  found,  then  upon  his  mother,  or  the 
person  having  the  care  or  control  of  the.  infant,  or  with  whom 
he  lives.  If  neither  of  these  can  be  found,  or  if  the  minor  be  more 
than  fourteen  years  of  age,  service  on  him  alone  will  be  sufficient. 
The  manner  of  service  may  be  the  same  as  in  the  case  of  adults."  " 

If  the  service  of  summons  be  not  made  in  strict  compliance  with 
the  statute,  the  court  has  no  jurisdiction  to  render  judgment 
against  the  minor,  and  a  judgment  rendered  against  the  minor, 
where  the  statute  has  not  been  strictly  complied  with,  is  void,  and 
confers  no  rights  upon  the  parties  obtaining  the  same.1 

charge  of  a  depot  or  station  of  the  company.     Shawnee  Tecumseh  Traction 
Co.  v.  Webster  (Okl.)  174  P.  266. 

The  service  of  a  summons  against  a  railway  company,  upon  its  section  fore- 
man, as  "a  local  superintendent  of  repairs,"  where  it  appears  that  the  com- 
pany has  not  designated  any  person  upon  whom  service  could  be  made  under 
section  68a,  p.  613,  Comp.  Laws  1885,  is  valid.  St.  Louis  &  S.  F.  Ry.  Co.  v.  De 
Ford,  16  P.  442,  38  Kan.  299. 

97  Rev.  Laws  1910,  §  4720.  t 

98  Rev.  Laws  1910,  §  1501. 
8»  Rev.  Laws  1910,  §  4723. 

i  Sealey  v.  Smith  (Okl.)  197  P.  490. 

(328) 


Art.  2)  PROCESS  §§  479-482 

Service  of  process  upon  an  infant  defendant,  as  required  by  this 
statute,  cannot  be  waived.2 

§  480.     Service  on  sheriff 

"Every  paper  required  by  law  to  be  served  on  the  sheriff,  may  be 
served  on  him  in  person,  or  left  at  his  office  during  his  business 
hours."  8 

§  481.     On  inmates  of  hospitals  for  insane 

"Any  citation,  order  or  process  required  by  law  to  be  served  on 
an  inmate  of  the  hospitals  shall  be  served  only  by  the  medical  su- 
perintendent in  charge  thereof  or  by  some  one  designated  by  him. 
Return  thereof  to  the  court  from  which  the  same  issued  shall  be 
made  by  the  person  making  such  service,  and  such  service  and  re- 
turn shall  have  the  same  force  and  effect  as  if  it  had  been  made  by 
the  sheriff  of  the  county."  * 

§  482.     Notice  or  process  issued  by  state  board  of  arbitration 

"Any  notice  or  process  issued  by  the  state  board  of  arbitration 
and  conciliation  shall  be  served  by  any  sheriff  or  constable  to 
whom  the  same  may  be  directed  or  in  whose  hands  the  same  may  be 
placed  for  service."  5 

-  Condit  v.  Gondif  (Okl.)  168  P.  456;  Echols  v.  Reeburgh,  62  Okl.  67,  161  P. 
1065.  ; 

Service  upon  a  minor  under  14  must  be  upon  him  and  upon  his  guardian  or 
father,  or  upon  his  mother  or  the  person  having  his  care  and  control,  jbut 
service  upon  a  minor  above  14  years  is  sufficient.  Jefferson  v.  Gallagher,  56 
Okl.  405,  150  P.  1071.  An  infant  cannot  waive  the  issuance  and  service  of  sum- 
mons, nor  can  his  guardian,  guardian  ad  litem,  or  attorney  waive  it  for  him, 
and  no  person  can  appear  for  an  infant  until  he  is  brought  into  court  accord- 
ing to  law.  Id. ;  Boiling  v.  Campbell,  128  P.  1091,  36  Okl.  671 ;  Same  v.  Gibson, 
128  P.  1093,  36  Okl.  678. 

s  Rev.  Laws  1910,  §  1705. 

Gen.  St.  1897,  c.  88,  §  14,  declares  that  every  paper  required  by  law  to  be 
served  on  the  sheriff  may  be  served  on  him  in  person  or  left  at  his  office 
during  his  business  hours.  The  return  on  a  summons  read  as  follows:  "Re- 
ceived this  writ  July  15,  1893,  and  was  commanded  therein  to  summon  the 
following  persons,  the  defendants  within  named,  at  the  time  following,  to 
wit,  J.  B.  N.,  sheriff,  June  24,  1893,  by  leaving  a  true  certified  copy  of  the 
within  summons  at  the  office  of  the  said  sheriff  with  the  undersheriff  of  said 
county."  Held  that,  while  it  did  not  affirmatively  appear  from  the  return 
that  the  summons  was  left  at  the  sheriff's  office  in  his  business  hours,  the 
return  was  sufficient.  Nipp  v.  Bower,  61  P.  448,  9  Kan.  App.  854. 

4  Sess.  Laws  1917,  p.  331,  §  36. 

5  Rev.  Laws  1910,  §  3710. 

(329) 


§§    483-484  COMMENCEMENT  OF  ACTION  (Ch.  !> 

§  483.     County  court 

"All  process  issued  by  the  county  court  shall  be  served  in  the 
same  manner,  and  by  the  persons  and  officers  as  provided  for  the 
service  of  process  of  the  district  court  with  the  same  fees."  6 

§  484.     Return 

"In  all  cases  the  return  must  state  the  time  and  manner  of  serv- 
ice." "The  officer  or  person  to  whom  the  summons  is  directed,  must 
return  the  same  at  the  time  therein  stated."  7 

Where  a  summons  is  made  returnable  in  nine  days  from  the  day 
of  its  issuance,  and  is  served  one  day  before  the  day  upon  which 
it  is  made  returnable,  and  twenty-one  days  before  the  defendants  are 
required  to  answer,  neither  the  summons  nor  the  service  thereof, 
nor  a  judgment  rendered  thereon  upon  default  by  the  defendants, 
are  void  or  voidable  because  of  the  failure  of  the  sheriff  to  return 
such  summons  and  file  the  same  with  the  clerk  of  the  district  court 
until  the  day  after  the  return  day.8 

A  return  of  service,  made  and  signed  by  a  sheriff,  when  actually 
made  by  his  deputy,  is  irregular,  but  not  invalid.9 

A  return  reciting  that  summons  was  served  on  one  defendant 
by  delivering  to  him  a  true  copy  thereof  and  on  another  by  leaving 
such  a  copy  at  his  usual  place  of  residence  with  a  member  of  his 
family  over  16  years  of  age,  and  purporting  to-be  signed  by  the 
sheriff  by  his  deputy  is  sufficient.10 

Where  a  summons,  directed  to  an  officer  of  another  county,  and 
returnable  in  less  than  ten  days  from  its  date  was  served  and  re- 
turned within  such  time  it  was  irregular,  but  where  it  gave  defend- 
ant full  statutory  time  to  plead,  and  in  no  way  prejudiced  him,  court 
properly  refused  to  quash  summons.11 

.  6  Rev.  Laws  1910,  §  6191. 
i  Rev.  Laws  1910,  §§  4712,  471.3. 
s  Miller  v.  Forbes,  49  P.  705,  6  Kan.  App.  617. 
»  Orchard  v.  Peake,  77  P.  281,  69  Kan.  510. 

10  Bollenbach  v.  Huber,  46  Okl.  127,  148  P.  716. 

A  return  reciting  that  the  officer  "summoned  the  within-named  S.  by  leav- 
ing a  certified  copy  of  the  within  summons,  and  the  indorsements  thereon, 
at  the  usual  place  of  residence"  on  a  certain  day,  shows  that  the  copy  was 
left  at  the  usual  place  of  residence  of  S.,  and  is  sufficient.  Sextou  v.  Rock 
Island  Lumber  &  Mfg.  Co.,  30  P.  164,  49  Kan.  153. 

11  Continental  Ins.  Co.  v.  Norman  (Okl.)  176  P.  21L, 

(330) 


Art.  2)  PROCESS  §§  485-486 

§  485.     Fees 

"When  a  summons  is  issued  to  another  county  than  that  in 
which  the  action  or  proceeding  is  pending,  it  may  be  returned  by 
mail,  and  the  sheriff  shall  be  entitled  to  the  same  fees  as  if  the  sum- 
mons had  issued  in  the  county  of  which  he  is  sheriff."  12 

§  486.     Conclusiveness 

A  sheriff's  return  showing  personal  service  of  summons,  though 
not  conclusive,  is  prima  facie  evidence  of  its  truthfulness,  and  re- 
quires clear  and  convincing  proof  to  overcome  it.13 

When  an  officer  makes  a  false  return  of  personal  service  on  which 
judgment  is  rendered,  such  return  is  not  conclusive  evidence  against 
the  fact.1* 

is  Rev.  Laws  1910,  §  4708. 

is  Jones  v.  Jones,  57  Okl.  442,  154  P.  1136;  Humphrey  v.  Coquillard  Wagon 
Works,  132  P.  899,  37  Okl.  714,  49  L.  R.  A.  (N.  S.)  600.  . 

The  return  of  an  officer  as  to  service  of  summons  is  not  conclusive  of  the- 
facts  therein  stated,  and  defendant  may  appear  specially  on  the  return  day,, 
and  contradict  the  same.  Jones  v.  Marshall,  43  P.  840,  3  Kan.  App.  529. 

As  between  the  parties  to  a  suit  and  their  privies,  the  general  rule  is;  that 
the  return  of  the  sheriff  to  process  is  conclusive.  Warren  v.  Wilner,  60  P. 
745,  61  Kan.  719 ;  Goddard  v.  Harbour,  44  P,  1055,  56  Kan.  744,  54  Am:  St.. 
Rep.  608. 

A  return  that  personal  service  was  had  on  defendant  is  not  open  to  contra- 
diction or  disproof  by  extrinsic  evidence  after  judgment.  Orchard  v.  ,Peake, 
77  P.  281,  69  Kan.  510. 

A  sheriff's  return  with  respect  to  the  service  of  original  process  may  be 
impeached  so  far  as  it  states  jurisdictional  facts,  where  the  facts  stated  are 
not  within  the  personal  knowledge  of  the  officer,  but  as  to  all  matters  stated 
in  his  return  which  are  within  the  officer's  personal  knowledge  the  return 
is  conclusive  as  between  the  parties  to  the  action.  Eastwood  v.  Carter,  61 
P.  510,  9  Kan.  App.  471. 

Evidence  held  insufficient  to  show  fraud  in  procuring  service  on  nonresident 
defendant.  Van  Arsdale-Osborne  Brokerage  Co.  v.  Jones,  156  P.  719,  97 
Kan.  646. 

Return  of  sheriff  reciting  that  certified  copy  of  summons  was  left  with 
defendant's  wife  at  his  usual  place  of  residence  makes  out  a  prima  facie 
case  of  residence.  Jones  v.  Reser,  61  Okl.  46,  160  P.  58.  An  official  return  is 
sufficient  pr6of  of  facts  which  the  officer  is  authorized  to  certify.  Cox  v^ 
State,  61  Okl.  182,  160  P.  895. 

i<  Ray  v.  Harrison,  121  P.  633,  32  Okl.  17,  Ann.  Cas.  1914A,  413. 


§§    487-489  COMMENCEMENT  OF  ACTION  (Ql.  9 

§  487.     Entering  return 

The  clerk  "shall,  upon  the  return  of  every  summons  served,  enter 
upon  the  appearance  docket  the  name  of  the  defendant  or  defend- 
ants summoned,  and  the  day  of  the  service  upon  each  one.  The  en- 
try shall  be  evidence  of  the  service  of  the  summons,  in  case  of  the 
loss  thereof."  15 

§  488.     Evidence  of  service 

Where  the  return  of  a  sheriff  that  he  has  served  a  summons  per- 
sonally is  ambiguous  and  open  to  a  construction  that  but  one  copy 
was  delivered  to  both  defendants,  parol  evidence  is  admissible  to 
show  that  no  service  was  had  on  one  of  the  defendants.18 

Testimony  of  one  on  whom  a  summons  was  served  as  secretary 
of  a  corporation,  tending  to  show  that  at  the  time  of  service  of  sum- 
mons he  was  not  such  officer,  is  admissible  to  impeach  the  return 
on  the  summons.17 

Where  the  original  process  in  an  action  in  the  district  court  is 
lost,  and  the  appearance  docket  recites  that  a  summons  was  issued 
and  returned  "Served,"  the  presumption  arising  therefrom  that  the 
return  was  regular,  and  the  service  valid,  is  not  overcome  by  tes- 
timony of  a  deputy  sheriff  .that  he  made  a  service  of  the  summons 
in  the  case,  which  was  invalid,  in  the  absence  of  a  showing  that  no 
further  service  was  made.18 

§  489.     Forms 

SUMMONS 

(Caption.) 
The  State  of  Oklahoma,  to  the  Sheriff  of  —. County — Greetings : 

You  are  hereby  commanded  to  notify  that  he   (or  she) 

Ha —  been  sued  by  in  the  district  court  of  county, 

Oklahoma,  and  that must  answer  the  petition  of  said 

filed  against in  said  court,  in  the  city  of  ,  in  said 

county,  on  or  before  the day  of ,  19 — ,  or  said  petition 

will  be  taken  as  true  and  judgment  rendered,  accordingly. 

You  will  make  due  return  on  this  summons  on  the  day 

of ,  A.  D.  19—. 

IB  Rev.  Laws  1910,  §  5332. 

ie  Jackson  v.  Tenney,  87  P.  867,  17  Okl.  495. 

IT  Schnack  v.  Boyd,  52  P.  874,  59  Kan.  275. 

is  Stunkle  v.  Holland,  46  P.  416,  4  Kan.  App.  478, 

(332) 


Art.  2)  PROCESS  §  489 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  the 

seal  of  said  court  at  ,  in  said  county,  this  day  of 

— ,  A.  D.  19—.  — ,  Court  Clerk, 

By  ,  Deputy. 

(Indorsements  as  follows:) 

Suit  brought  for . 

If  the  defendant  fail  to  answer,  plaintiff  will  take  judgment  for 

the  sum  of  $ ,  with  interest  thereon  at  the  rate  of per 

cent,  per  annum  from  the  day  of  ,  19 — ,  and  costs 

of  suit.  ,  Court  Clerk, 

By ,  Deputy. 

RETURN  OF  SUMMONS  PERSONALLY  SERVED 

State  of  Oklahoma," 


County  of 

Received  this  writ  ,  19 — ,  and,  as  commanded  therein,  I 

summoned  the  following  persons  of  the  defendant  within  named 
at  the  times  following,  to  wit: 

A.  B., ,19— 

C.  D., ,  19- 

by  delivering  to  each  of  said  defendants,  personally,  in  said  county, 
a  true  and  certified  copy  of  the  within  summons,  with  all  of  the 
indorsements  thereon,  and  leaving  the  same  with  them. 

,  Sheriff, 

By ,  Deputy. 

RETURN  OF  SUMMONS  SERVED  ON  ADMINISTRATOR 

State  of  Oklahoma, 


County  of 

Received  this  writ  ,  19 — ,  and,  as  commanded  therein,  I 

summoned  the  within  named  defendant,  A.  B.,  as  administrator 
of  the  estate  of  C.  D.,  deceased,  by  delivering  to  said  A.  B.,  person- 
ally, in  said  county,  a  true  and  certified  copy  of  the  within  sum- 
mons, with  all  of  the  indorsements  thereon. 

,  Sheriff, 

By ,  Deputy. 

(333) 


489-490  COMMENCEMENT   OP  ACTION  (Cll.  9* 


RETURN   OE   SUMMONS   SERVED   BY   LEAVING   COPY   AT   PLACE   OE   RESI- 
DENCE 

State  of  Oklahoma,' 


County  of 

Received  this  writ  ,  19 — ,  and,  as  commanded  therein,  I 

summoned  the  within  named  defendant,  A.  B.,  on  the day 

of  —  — ,  19 — ,  by  leaving  for  said  defendant  at  his  usual  place 
of  residence  in  said  county,  with  C.  B.,  wife  (or  child,  etc.)  of  said 
defendant  and  a  person  over  fifteen  years  of  age,  a  true  and  cer- 
tified copy  of  the  within  summons,  with  all  the  indorsements 
thereon. 

,  Sheriff, 

By -,  Deputy. 

RETURN  OE  SUMMONS  SERVED  ON  CORPORATION 

ss. : 

V 

Received  this  writ  ,  19 — ,  and,  as  commanded  therein,  I 

summoned  the  within  named  defendant,  A.  B.  &  Co.,  on  the 

day  of ,  19 — ,  by  delivering  to  C.  D.,  secretary  of  said  cor- 
poration, personally,  in  said  county,  a  true  and  certified  copy  of  the 
within  .summons,  with  all  of  the  indorsements  thereon;  the  pres- 
ident, mayor,  chairman  of  the  board  of  directors,  or  trustees,  or 
other  chief  officer,  cashier,  or  treasurer,  not  being-  found  in  said 
county. 

• ,  Sheriff, 

By ,  Deputy. 

DIVISION  III. — SERVICE  BY  PUBLICATION 

§  490.     In  general 

A  state  has  power  by  statute*  to  provide  for  the  adjudication  of 
titles  to  real  estate  within  its  limits  as  against  nonresidents  who 
are  brought  into  court  only  by  publication.18 

The  method  of  obtaining  jurisdiction  over  a  person  not  within 
the  state  must  be  as  indicated  by  the  statute.20 

i»  Gushing  v.  Cummings  (Okl.)  179  P.  762. 

20  First  State  Bank  of  Addington  v.  Lattimer,  48  Okl.  104,  149  P.  1099. 

(334) 


Art.  2)  PROCESS  §§  490-491 

Service  by  publication  is  authorized  only  where  plaintiff  with 
due  diligence  is  unable  to  serve  defendant  within  the  state.21  A 
valid  personal  judgment  cannot  be  rendered  against  a  nonres- 
ident on  publication.22 

§  491.     Service  by  publication — When  authorized 

"Service  may  be  had  by  publication  in  any  of  the  following 
cases:  In  actions  brought  under  sections  4671  and  4672,  article  6, 
chapter  60  of  the  Revised  Laws  of  Oklahoma,  1910,  where  any  or 
all  of  the  defendants  reside  out  of  the  state,  or  where  it  is  stated 
in  the  affidavit  for  service  by  publication  that  the  plaintiff  with  due 
diligence  is  unable  to  make  service  of  summons  upon  such  defend- 
ant or  defendants  within  the  state ;  in  actions  brought  to  establish 
or  set  aside  a  will,  where  any  or  all  of  the  defendants  reside  out 
of  the  state;  in  actions  brought  to  obtain  a  divorce  or  alimony  or 
annulment  of  the  contract  of  marriage,  where  the  defendant  resides 
out  of  the  state ;  in  an  action  brought  against  a  nonresident  of 
the  state  or  a  foreign  corporation  having  in  this  state  property  or 
debts  owing  them,  sought  to  be  taken  by  any  of  the  provisional 
remedies,  or  to  be  appropriated  in  any  way;  in  actions  which  re- 
late to,  or  the  subject  of  which  is,  real  or  personal  property  in  this 
^state  where  any  defendant  has  or  claims  a  lien  or  interest,  actual 
or  contingent  therein,  or  the  relief  demanded  consists  wholly  or 
partly  in  excluding  him  from  any  lien  or  interest  therein,  and  such 
defendant  is  a  nonresident  of  the  state  or  a  foreign  corporation ; 
in  all  actions  where  the  defendant,  being  a  resident  of  this  state, 
has  departed  therefrom  or  from  the  county  of  his  residence,  with 
intent  to  delay  or  defraud  his  creditors,  or  to  avoid  the  service  of 
summons  or  keep  himself  concealed  therein  with  like  intent;  and, 
in  any  of  the  actions  mentioned  in  this  section,  against  a  domestic 
corporation  which  has  not  been  legally  dissolved  and  has  ceased  to 
maintain  an  office  with  some  person  in  charge  thereof  at  the  place 
in  this  state  where,  in  its  article  of  incorporation,  it  is  stated  its 
principal  business  is  to  be  transacted,  and  its  officers  and  agents, 
if  any,  upon  whom  service  of  summons  against  such  corporation  is 
authorized  to  be  made  by  the  laws  of  this  state  are  either  non- 
residents thereof  or  have  departed  therefrom  or  cannot,  upon  dili- 

21  Richardson  v.  Howard,  51  Okl.  240,  151  P.  887. 

22  Pettis  v.  Johnston,  78  Okl.  277,  190  P.  68L 

(335) 


§§    491-492  COMMENCEMENT  OF  ACTION  (Ql.  9 

gent  inquiry,  be' found  therein,  or  where  it  is  stated  in  the  affidavit 
for  service  by  publication,  in  such  action,  that  the  plaintiff  with 
due  diligence  is  unable  to  make  service  of  summons  upon  such 
defendant  within  this  state. 

"In  any  of  the  actions  mentioned  in  this  section  wherein  the  un- 
known heirs,  executors,  administrators,  devisees,  trustees  or  as- 
signs or  any  of  them,  of  any  deceased  person,  or  the  unknown  suc- 
cessors, trustees  or  assigns,  if  any,  of  any  dissolved  corporation, 
are  made  defendants;  or  wherein  the  plaintiff  upon  diligent  in- 
quiry, is  unable  to  ascertain  the  whereabouts  of  a  person  named 
as  a  defendant  or  whether  he  is  living  or  dead,  and  if  dead,  is  un- 
able to  ascertain  who  are  his  heirs,  executors,  administrators,  dev- 
isees, trustees  or  assigns,  if  any,  or  their  whereabouts ;  or  wherein 
the  plaintiff  upon  diligent  inquiry,  is  unable  to  ascertain  whether  a 
corporation,  domestic  or  foreign,  named  as  a  defendant,  continues 
to  have  legal  existence  or  not,  or  has  officers  or  not,  or  their  names 
and  whereabouts,  and  if  dissolved,  is  unable  to  ascertain  the  names 
or  whereabouts  of  the  successors,  trustees  or  assigns,  if  any,  of 
such  corporation ;  or  wherein  the  plaintiff  cannot  ascertain  whether 
a  person  named  as  a  defendant  is  living  or  dead,  or,  if  dead,  the 
names  of  his  heirs,  executors,  administrators,  devisees,  trustees  or 
assigns,  if  any,  or  cannot  ascertain  whether  a  corporation  has  been 
dissolved  or  not,  or  if  dissolved,  the  names  of  its  successors,  trus- 
tees, or  assigns;  publication  service  may  be  had  upon  such  un- 
known party  or  in  the  alternative  upon  such  person,  if  living,  or 
corporation,  or  if  dead,  or  dissolved,  upon  the  unknown  heirs,  ex- 
ecutors, administrators,  trustees,  devisees  and  assigns,  if  any,  of 
such  deceased  person,  or  the  unknown  successors,  trustees,  and 
assigns  of  such  dissolved  corporation."  *3 

§  492.     In  what  actions  authorized 

In  an  action  to  quiet  title  to  real  estate,  brought  by  one  in  actual 
possession  against  a  person  who  is  nonresident  and  out  of  the  state, 
service  of  summons  may  be  made  by  publication.2* 

Service  of  summons  by  publication  on  a  nonresident  is  unauthor- 
ized in  an  action  which  joins  claims  only  personal  in  their  nature 
with  claims  affecting  real  estate  situated  within  the  state.26 

23  Sess.  Laws  1919,  c.  145,  §  1,  amending  Rev.  Laws  1910,  §  4722. 

24  Dillon  v.  Heller,  18  P.  693,  39  Kan.  599. 

25  Zimmerman  v.  Barnes,  43  P.  764,  56  Kan.  419. 

(336) 


Art.  2)  PROCESS  §§  492-493 

In  an  action  for  specific  performance  to  convey  land,  no  jurisdic- 
tion of  a  defendant  could  be  obtained  by  publication.28 

In  actions  relating  to  real  or  personal  property  in  state  where  any 
defendant  has  or  claims  a  lien  or  interest  actual  or  contingent  there- 
in, or  where  the  relief  demanded  consists  in  excluding  him  from 
any  interest  therein,  and  where  such  defendant  is  a  nonresident 
or  a  foreign  corporation,  service  by  publication  may  be  had.27 

An  action  against  nonresident  of  territory  of  Oklahoma  having 
property  attachable  therein  is  an  action  in  which  service  of  summons 
may  be  made  on  defendant  by  publication.28 

A  temporary  restraining  order,  while  a  provisional  remedy,  is  not 
such  a  remedy  as  contemplated  by  the  statute  allowing  service  by 
publication  in  actions  against  nonresident  having  property  in  the 
state,  sought  to  be  taken  by  provisional  remedies.29 

§  493.     On  whom  authorized 

In  civil  actions  against  residents,  jurisdiction  must  be  acquired 
by  personal  service  or  voluntary  appearance  and  cannot  be  obtained 
by  publication  service.80 

Service  of  process,  under  the  statute  providing  for  publication, 
where  defendant,  being  a  resident  of  the  state,  has  departed  with 
the  intent  tb  avoid  service,  was  not  invalid  because  the  defendant, 
at  the  time  thereof,  resided  outside  of  the  state.81 

In  an  action  against  a  nonresident,  to  trace  a  trust  fund  into  spe- 
cific property  held  by  him  in  the  state,  with  notice  of  the  trust, 
service  by  publication  is  sufficient.32 

se  Homer  v.  Ellis,  90  P.  275,  75  Kan.  675,  121  Am.  St.  Rep.  446. 

27  Gushing  v.  Cummings  (Okl.)  179  P.  762. 

28  Richardson  v.  Carr  (Okl.)  171  P.  476. 

-  29  Waldock  v.  Atkins,  60  Okl.  38,  158  P.  587. 

so  Friedman  v.  First  Nat.  Bank,  39  Okl.  486,  135  P.  1069,  49  L.  R.  A.  (N. 
S.)  548. 

Where  a  civil  action  is  commenced  against  two  residents  in  a  county  other 
than  that  of  their  residence,  and  a  garnishment  summons  is  issued  upon  a 
resident  of  the  county  where  the  action  is  commenced,  and  defendants  are 
not  served  and  make  no  appearance,  and  service  by  publication  is  attempted 
to  be  made  upon  them,  a  judgment  rendered  against  them  by  default  is  void. 
Friedman  v.  First  Nat.  Bank,  39  Okl.  486,  135  P.  1069,  49  L.  R.  A.  (N.  S.)  ~548. 

si  Cole  v.  Hoeburg,  13  P.  275,  36  Kan.  263. 

32  Reeves  v.  Pierce,  67  P.  1108,  64  Kan.  502. 


HON.PL.&  PBAC.— 22 


(337) 


§§    494-495  COMMENCEMENT  OF  ACTION  (Ch.  9 

§  494.    Unknown  heirs  or  devisees 

"In  actions  where  it  shall  be  necessary  to  make  the  heirs  or 
devisees  of  any  deceased  person  defendants,  and  it  shall  appear  by 
the  affidavit  of  the  plaintiff,  annexed  to  his  petition,  that  the  name 
of  such  heirs  or  devisees,  or  any  of  them,  and  their  residences,  are 
unknown  to  the  plaintiff,  proceedings  may  be  had  against  such 
unknown  heirs  or  devisees,  without  naming  them.  In  such  ac- 
tions service  may  be  had  upon  such  defendants  by  publication  and 
the  notice  shall  be  published  as  in  other  cases  of  service  by  pub- 
lication." 33 

The  term  "unknown  heirs,"  where  the  relief  demanded  is  to  ex- 
clude defendants  from  any  interest  in  real  property,  means  all 
kinds  of  heirs,  including  heirs  of  heirs  of  such  defendants  as  well 
as  the  legatees  of  heirs.3*  . 

In  a  suit  to  quiet  title  brought  against  unknown  heirs  of  one  erro- 
neously supposed  to  be  dead,  and  unknown  heirs  of  those  from 
whom  his  right  and  title  descended,  where  service  was  attempted 
by  publication,  such  one  is  not  a  party  to  action,  and  court  acquired 
no  jurisdiction  of  him  by  such  attempted  service.35 

§  495.    Affidavit— Form 

"Before  service  can  be  made  by  publication,  an  affidavit  must  be 
filed  stating  that  the  plaintiff,  with  due  diligence,  is  unable  to  make 
service  of  the  summons  within  the  state  upon  the  defendant  to 
be  served  by  publication,  and  showing  that  the  case  if  one  of  those 
mentioned  in  the  preceding  section.  .When  such  affidavit  is  filed 
the  party  may  proceed  to  make  service  by  publication. 

"In  actions  against  unknown  heirs,  executors,  administrators, 
devisees,  trustees  and  assigns,  of  any  deceased  person,  or  in  the  al- 
ternative against  a  person  or  his  unknown  heirs,  executors,  adminis- 
trators; devisees  and  assigns,  or  against  a  corporation  or  its  un- 
known successors,  trustees  and  assigns,  the  affidavit  shall  state 
that  the  plaintiff  does  not  know  and  with  diligence  is  unable  to 
ascertain  the  names  or  whereabouts  of  any  such  heirs,  executors, 
administrators,  devisees,  trustees  or  assigns,  or  successors,  trus- 

«s  Rev.  Laws  1910,  §  4729. 

s*  Howell  v.  Carton,  108  P.  844,  82  Kan.  495. 

as  Buck  v.  Simpson  (OkL)  166  P.  146,  L.  R.  A.  1918F,  604. 

(338) 


Art.  2)  PROCESS  §  495 

tees  or  assigns  of  a  corporation,  or  with  diligence  is  unable  to 
ascertain  whether  a  person  named  in  the  alternative  is  living  or 
dead,  or  his  whereabouts,  and  if  he  be  dead,  is  unable  to  ascertain 
the  names  or  whereabouts  of  his  heirs,  executors,  administrators, 
devisees,  trustees  or  assigns,  or  is  unable  to  ascertain  whether  a 
corporation  named  in  the  alternative  is  legally  existing  or  dissolved, 
and  if  not  in  existence,  is  unable  to  ascertain  the  names  or  where- 
abouts of  its  officers,  successors,  trustees  or  assigns,  if  any.  When 
such  affidavit  is  filed  the  party  may  proceed  to  make  service,  in  such 
actions,  by  publication.  Statements  as  to  any  and  all  kinds  of 
defendants,  natural  or  corporate,  known  or  unknown,  may  be 
united  in  one  affidavit  for  service  by  publication,  and  notice  to  all 
of  them  may  be  included  in  one  publication  notice."  8e 

Where  publication  is  relied  on  to  confer  jurisdiction,  the  affidavit 
as  well  as  the  publication  notice  are  jurisdictional  matters,  and  both 
must,  comply  with  the  statute.37 

It  is  not  necessary  to  allege  in  terms  that  the  action  is  one  of 
those  enumerated  in  the  statute,  where  the  affidavit  to  obtain  serv- 
ice by  publication  mentions  sufficient  grounds.88 

3«  Sess.  Laws  1919,  c.  145,  §  2,  amending  Rev.  Laws  1910,  §  4723. 

Under  Code  Civ.  Proc.  §  72,  enumerating  the  cases  in  which  service  may 
be  had  by  publication,  and  section  73,  requiring  an  affidavit  for  such  service 
to  show  "that  the  case  is  one  of  those  mentioned"  by  section  72,  an  affidavit 
stating  that  the  action  is  one  "to  quiet  title  to  real  estate,  as  provided  by 
section  72,"  does  not  sufficiently  show  that  the  case  is  "one  of  those  men- 
tioned." Leavenworth,  T.  &  S.  W.  Ry.  Co.  v.  Stone,  55  P.  346,  60  Kan.  57. 
An  affidavit  for  service  by  publication  under  Code  Civ.  Proc.  §§  72,  73,  in  an 
action  concerning  real  estate,  must  state  the  location  of  the  land  because  it 
is  a  local  action.  Id. 

An  affidavit  for  service  by  publication  was  entitled  in  the  cause,  but  the 

venue  was  stated  thus:    "State  of  Kansas,  County."     Held  sufficient. 

Baker  v.  Agricultural  Land  Co.,  61  P.  412,  62  Kan.  79. 

ST  Cordray  v.  Cordray,  91  P.  781,  19  Okl.  36. 

s  s  Chaplin  v.  First  Bank  of  Hitchcock  (Okl.)  181  P.  497;  Lausten  v.  Union 
Nat.  Bank  of  Bartlesville  (Okl.)  173  P.  823. 

An  affidavit  for  service  by  publication  need  not  state  that  the  action  is  one 
of  those  mentioned  in  Code  Civ.  Proc.  §  78  (Gen.  St.  1909,  §  5671),  or  that 
it  is  one  in  which  service  by  publication  can  be  made,  but  should  state  facts 
showing  that  the  action  is  one  in  which  such  service  is  authorized.  Harvey 
v.  Harvey,  118  P.  1038,  85  Kan.  689.  An  affidavit  for  service  by  publication 
which  alleges  that  the  action  is  brought  to  set  aside  a  deed  to  plaintiff's 
homestead  and  to  quiet  title,  that  defendant  is  a  nonresident,  that  personal 
service  cannot  be  had,  and  that  plaintiff  has  a  just  cause  of  action  is  sufficient 
as  against  an  attack  by  a  suit  to  set  aside  the  judgment  brought  more  than 
three  years  after  judgment.  Id. 

(339) 


§    495  COMMENCEMENT  OF  ACTION  (Ql.  9 

If  there  is  a  total  want  of  evidence  upon  a  vital  point  in  the  affi- 
davit for  publication,  the  court  acquires  no  jurisdiction  by  pub- 
lication of  the  summons ;  but  where  there  is  not  an  entire  omission 
to  stale  some  material  fact,  but  it  is  inferentially  or  insufficiently 
set  forth,  the  proceedings  are  merely  voidable.39 
.  Certain  averments  omitted  from  the  affidavit  may  be  inferred 
from  facts  alleged ;  *°  but  there  must  be  some  substantial  allega- 
tion on  which  to  base  the  inference,41  and  the  facts  showing  due 
diligence  to  obtain  personal  service  in  the  state  should  be  set  up,42 

39  Harris  v.  Olaflin,  13  P.  830,  36  Kan.  543. 

40  Affidavit  for  summons  by  publication  under  Rev.  Laws  1910,  §§  4722, 
4723,  made  in  case  specified  in  section  4722,  and  alleging  inability  to  make 
summons,  otherwise  than  by  publication,  held  sufficient  to  support  judgment 
based  on  such  service  as  against  attack  on  ground  that  defect  in  affidavit  ren- 
dered judgment  void,  as  averment  omitted  from  affidavit  would  be  inferred. 
Richardson  v.  Carr  (Okl.)  171  P.  476. 

Under  Gen.  St.  1915,  §§  6969,  6970,  affidavit  in  action  against  railroad  for 
damages  to  live  stock  in  transit  for  service  by  publication,  based  on  garnish- 
ment proceedings,  held  sufficient.  Dye  v.  Denver  &  R.  G.  R.  Co.,  101  Kan. 
666,  168  P.  1087. 

In  an  action  to  reform  and  foreclose  a  mortgage,  service  of  summons  by 
publication  was  obtained  on  affidavit  that  "defendant  has  removed  from  said 
county  of  Shawnee,  and  now  resides  in  that  region  of  country  known  as 
'Pikes'  Peak,'  and  that  service  of  summons  cannot  be  made  on  said  defend- 
ant within  this  territory."  Held  that,  when  attacked  in  a  collateral  proceed- 
ing, the  affidavit  was  sufficient,  though  it  did  not  mention  the  reformation, 
nor  directly  state  that  defendant  was  a  nonresident  of  Kansas.  Carey  v. 
Reeves,  5  P.  22,  32  Kan.  718. 

An  affidavit  to  obtain  service  by  publication,  which  inferentially  states  all 
material  facts  required  by  Gen.  St.  1901,  §  4507,  is  not  void  because  failing  to 
state  that  plaintiffs  were  unable  to  make  service  "with  due  diligence,"  but 
is  at  most  only  voidable.  Morris  v.  Robbins,  111  P.  470,  83  Kan.  335. 

The  omission  of  an  allegation  in  an  affidavit  for  service  by  publication  that 
service  could  not  be  had  "by  due  diligence"  is  immaterial.  Smith  vJ  United 
States  Sugar  &  Land  Co.,  108  P.  860,  82  Kan.  539. 

41  Ballew  v.  Young,  103  P.  623,  24  Okl.  182,  23  L,  R.  A.  (N.  S.)  1084. 
Where  the  affidavit  for  publication  does  not  state  directly,   inferentially, 

or  in  any  other  way,  that  the  action  brought  is  one  of  those  mentioned  in 
Civ.  Code,  §  72,  the  affidavit  is  fatally  defective,  and  service  by  publication 
cannot  be  obtained  thereon.  Harris  v.  Claflin,  13  P.  830,  36  Kan.  543. 

An  affidavit  for  publication  is  insufficient  which  does  not  state  that  the 
case  is  within  Civ.  Code,  §  72,  enumerating  the  cases  in  which  service  by 
publication  may  be  had.  Grouch  v.  Martin,  27  P.  985,  47  Kan.  313.  An  at- 
tempted service  of  process  by  publication  is  insufficient,  where  the  affidavit 
for  publication  does  not  state  that  plaintiff  is  unable  to  obtain  personal  service 
on  defendant.  Id. 

42  Nicoll  v.  Midland  Savings  &  Loan  Co.  of  Denver,  Colo.,  21  Okl.  591,  96 
Pac.  744. 

Affidavit  for  summons  by  publication,  averring  that  whereabouts  of  de- 

(340) 


Art.  2)  PROCESS  §  495 

unless  it  is  alleged  that  defendant  is  a  nonresident;48    mere  conclu- 
sions or  hearsay  being  insufficient.44 

An  affidavit  for  service  by  publication  that  defendant  is  a  non- 
resident of  Oklahoma  and  a  resident  of  another  state,  without  show- 


fendants  could  not  be  known  by  affiant,  that  he  had  used  due  diligence  and 
had  made  trips  to  find  them,  was  insufficient,  where  facts  as  to  due  diligence 
used  a?  to  service  in  the  state  were  not  set  up.  Rentie  v.  Rentie  (Okl.)  172 
P.  1083. 

Where  an  affidavit  for  notice  by  publication  was  fatally  defective,  the 
court  obtained  no  jurisdiction  over  the  person  of  defendants.  Griffin  v.  Jones, 
45  Okl.  305,  147  P.  1024.  An  affidavit  filed  for  a  notice  of  publication  held 
insufficient,  where  it  failed  to  allege  any  facts  showing  that  defendants  could 
not  be  served  by  the  exercise  of  diligence,  or  that  they1  were  not  in  the 
state.  Id. 

Where  an  affidavit  for  service  on  a  foreign  corporation  by  publication 
did  not  show  that  such  corporation  had  not  complied  with  the  laws  relative  to 
foreign  corporations  in  appointing  and  designating  agents  on  whom  service 
might  be  had,  nor  state  facts  showing  that  due  diligence  had  been  used  to 
obtain  personal  service  a  judgment  rendered  thereon  was  void.  Nicoll  v. 
Midland  Savings  &  Loan  Co.  of  Denver,  Colo.,  96  P.  744,  21  Okl.  591. 

Under  Code  Civ.  Proc.  §  79  (Gen.  St.  1909,  §  5672),  which  takes  the  place 
of  section  73  of  the  old  code,  an  affidavit  for  service  by  publication  which 
wholly  fails  to  show  that  plaintiff  diligently  inquired  as  to  the  residence 
of  the  defendants  to  be  served  by  publication  and  was  unable  to  learn  same 
is  void.  Van  Gundy  v.  Shewey,  133  P.  720,  90  Kan.  253,  47  L.  R.  A.  (N. 
S.)  645. 

43  An  affidavit  for  service  on  nonresident  by  publication,  otherwise  suffi- 
cient, was  not  void  or  voidable  because  not  stating  facts  showing  that  plaintiff 
in  exercise  of  due  diligence  was  unable  to  make  service  of  summons.     Con- 
tinental Gin  Co.  v.  Arnold  (Okl.)  167  P.  613,  L.  R.  A.  1918B,  511. 

Where  the  element  of  nonresidence  of  defendant  is  absent,  the  affidavit  for 
publication  must  either  show  proper  active  effort  to  find  and  serve  him  with- 
in the  state  or  facts  showing  that  such  effort  would  be  futile.  Richardson 
v.  Howard,  51  Okl.  240,  151  P.  887.  Where  defendant  in  a  mortgage  fore- 
closure is  a  nonresident,  and  plaintiff  neither  knows  nor  has  reason  to  be- 
lieve that  he  may  be  served  within  the  state,  the  affidavit  for  publication 
need  not  show  active  diligence  to  serve  him  within  the  state.  Id. 

Where  an  affidavit  for  service  by  publication  is  otherwise  sufficient,  it  is 
not  void  or  voidable  because 'facts  are  not  stated  therein  showing  that  plain- 
tiff, by  the  use  of  due  diligence,  was  unable  to  make  service  in  the  state. 
Harris-Lipsitz  Co.  v.  Oldham,  56  Okl.  124,  155  P.  865. 

Affidavit  that  defendants  are  nonresidents,  that  plaintiff  by  due  diligence 

44  An  affidavit  for  service  by  publication,  which  states  that  the  defend- 
ant is  a  nonresident,  as  affiant  is  advised  and  informed,  and  that  the  de- 
fendant's last-known   residence   was  Claremore,   Okl.,   but   that  the  defend- 
ant has  left  the  said  place,  as  affiant  is  informed  and  believes,  is  a  mere 
hearsay  declaration,  insufficient  as  a  basis  for  service  by  publication.     Hol- 
land v.  Holland  (Okl.)  173  P.  1139. 

(341) 


§    495  COMMENCEMENT  OF  ACTION  (Ql.  9" 

ing  that  service  could  not  be  had  on  him  in  Oklahoma,  is  insuffi- 
cient.45 

An  affidavit  made  some  time  after  the  petition  is  filed,  which 
states  that  defendant  resides  out  of  the  state  and  is  a  nonresident 
thereof  is  sufficient  without  relating  back  and  averring  that  he 
was  a  nonresident  at  the  time  the  petition  was  filed.46 

The  affidavit  may  be  made  by  an  attorney.47 

AFFIDAVIT  TO  OBTAIN  SERVICE  BY  PUBLICATION 

(Caption.) 

A.  B.,  being  duly  sworn  according  to  law,  says: 
That  he  is  the   (agent,  or  attorney,  for)  above  named  plaintiff. 
That  on  the  day  of  ,  19 — ,  he  caused  a  summons 

to  be  issued  in  the  above  entitled  cause  against  the  above  named 

is  unable  to  make  service  of  summons  on  them  within  territory,  and  that 
action  is  to  quiet  title  to  described  land  is  sufficient  to  authorize  service  by 
publication.  Gray  v.  Gray,  57  Okl.  667,  157  P.  730. 

An  affidavit  for  service  by  publication  that  defendant  is  a  nonresident  'of 
the  state,  and  service  cannot  be  had  upon  him  therein,  and  otherwise  suf- 
ficient, is  valid,  though  not  stating  facts  showing  that  service  cannot  be 
made  by  due  diligence.  Ballew  v.  Young,  103  P.  623,  24  Okl.  182,  23  L.  R. 
A.  (N.  S.)  1084. 

Affidavit  for  service  by  publication  held  sufficient  without  stating  the  facts 
as  to  diligence  used.  Tolbert  v.  State  Bank  of  Paden,  121  P.  212,  30  Okl.  403. 

An  affidavit  to  obtain  service  by  publication  held  to  comply  with  the  re- 
quirements of  Rev.  Laws  1910,  §  4722.  Oates  v.  Freeman,  57  Okl.  449,  157 
P.  74. 

Under  Sess.  Laws  1889,  c.  107,  §  2,  providing  that  an  affidavit  for  service 
by  publication  must  allege  that  plaintiff,  with  due  diligence,  is  unable  to 
make  service  of  summons  on  defendant,  an  allegation  that  defendant  is  a 
nonresident  of  the  state,  and  service  cannot  be  had  upon  him  within  the 
state,  is  sufficient.  Washburn  v.  Buchanan,  52  Kan.  417,  34  P.  1049. 

An  affidavit  for  publication,  alleging  nonresidence,  negatives  a  usual  place 
of  residence  in  the  state  where  summons  can  be  served,  and  personal  ab- 
sence from  the  state  precludes  personal  delivery  of  summons.  Ennis  v.  Grimes, 
102  P.  454,  80  Kan.  429. 

An  affidavit  for  service  of  process  by  publication,  filed  on  January  17,  1861, 
that  defendant  resided  within  the  region  of  country  known  as  "Pike's  Peak," 
which  was  then  within  the  territory  of  Kansas,  shows  on  its  face  that  de- 
fendant is  not  a  nonresident  of  Kansas,  and  service  on  the  ground  of  non- 
residence  (Comp.  Laws  1862,  c.  26,  tits.  4,  5;  Code  Civ.  Proc.  §  1859)  is  un- 
authorized. Carey  v.  Reeves,  26  P.  951,  46  Kan.  571. 

45  Fenton  v.  Burleson,  124  P.  1087,  33  Okl.  230. 

*6  Bogle  v.  Gordon,  17  P.  857,  39  Kan.  31. 

47  Tolbert  v.  State  Bank  of  Paden,  121  P.  212,  30  Okl.  403. 

(342) 


Art.  2)  PROCESS  §§  495-496 

defendant  C.  D.,  but  was  unable  with  due  diligence  to  make  service 
of  the  same  upon  said  defendant  within  said  state. 

That  the  defendant,  C.  D.,  is  a  nonresident  of  the  state  of  Okla- 
homa (or  is  a  foreign  corporation)  having  property  in  this*  state, 
which  plaintiff  is  seeking  in  this  action  to  have  taken  by  attach- 
ment (or,  garnishment). 

That  said  defendant's  last  known  place  of  residence  was  - 
(or,  is  unknown  to  this  plaintiff). 

Affiant  further  says  that  this  action  is  brought  for  (specify  re- 
lief demanded),  and  that  the  said  plaintiff  wishes  to  obtain  service 
on  said  defendant  by  publication ;  vand  further  affiant  saith  not. 

A.  B. 

Subscribed  in  my  presence  and  sworn  to  before  me  this  

day  of ,  19—  ,  Court  Clerk, 

By  ,  Deputy. 

§  496.     Divorce 

An  affidavit  for  service  by  publication  in  divorce,  that  the  where- 
abouts of  defendant  are  unknown  and  her  post  office  address  can- 
not be  ascertained  by  any  means  within  affiant's  control,  carries  a 
sufficient  inference  of  diligent  inquiry  to  save  the  affidavit  from 
total  insufficiency.48 

It  is  not  necessary  in  a  divorce  case  that  the  clerk  of  the  district 
court  should  issue  a  summons,  where  service  of  summons  is  made 
by  publication.49  In  a  divorce  case,  where  an  affidavit  is  filed  stat- 
ing that  the  residence  of  the  defendant  is  unknown  to  the  plaintiff, 
and  cannot  be  ascertained  by  any  means  within  the  control  of  the 
plaintiff,  in  lieu  of  sending  a  copy  of  the  petition  and  a  copy  of 
the  publication  notice  to  the  defendant  within  three  days  after  the 
date  of  the  first  publication,  it  is  not  necessary  that  the  affidavit 
should  be  filed  within  the  same  period.50 

"  Bell  v.  Bell,  156  P.  778,  97  Kan.  616. 

4»  Larimer  v.  Knoyle,  23  P.  487,  43  Kan.  338. 

sold. 

Code  Civ.  Proc.  §  640,  provides  that  when,  in  a  suit  for  divorce,  service  is 
made  by  publication,  a  copy  of  the  petition  with  a  copy  of  the  notice  attached 
shall  be  mailed  to  the  defendant  within  three  days  after  the  first  publica- 
tion, unless  the  plaintiff  shall  make  and  file  an  affidavit  that  the  defendant's 
residence  is  unknown  and  cannot  be  ascertained.  Held,  that  the  affidavit 
need  not  be  filed  within  three  days  after  the  first  publication.  Ensign  v. 
Ensign,  26  P.  7,  45  Kan.  612. 

An  affidavit  for  service  by  publication  under  Civ.  Code  Proc.  §  73  (Gen. 

(343) 


§§    497-498  COMMENCEMENT  OF  ACTION  (Ql.  9 

§  497.     Order 

Where  an  affidavit  was  presented  to  obtain  an  order  to  serve 
defendants  by  publication  which  was  granted  and  notice  of  publica- 
tion given,  and  a  decree  to  quiet  title  was  entered  by  default,  the 
fact  that  37  days  intervened  between  the  date  when  the  affidavit 
was  sworn  to  and  when  the  order  was  made  did  not  render  the  affi- 
davit stale  in  that  the  order  should  have  been  made  on  facts  then 
shown  to  exist.51 

§  498.     Publication  notice — Form 

"The  publication  must  be  made  three  (3)  consecutive  weeks  in 
some  newspaper  authorized  by  ifiw  to  publish  legal  notices  printed 
in  the  county  where  the  petition  is  filed  if  there  be  any  printed  in 
such  county,  and  if  there  be  none,  then  in  some  such  newspaper 
printed  in  this  State'  of  general  circulation  in  that  county.  It  shall 
state  the  court  in  which  the  petition  is  filed,  the  names  of  the  par- 
ties, or  where  unknown,  shall  describe  them  as  the  unknown  heirs, 
executors,  administrators,  devisees,  trustees  and  assigns  of  such 
person,  or  the  unknown  successors,  trustees  and  assigns  of  such 
corporation  and  must  notify  the  defendants  thus  to  be  served  that 
he  or  they  have  been  sued  and  must  answer  the  petition  filed  by 
the  plaintiff  on  or  before  a  time  to  be  stated  (which  shall  not  be 
less  than  forty-one  (41)  days  from  the  date  of  the  first  publica- 


St.  1905,  §  4950),  alleging  that  affiant  was  the  plaintiff,  that  she  had  filed 
a  petition  against  the  defendant  to  obtain  a  divorce,  that  defendant  was  a 
nonresident  of  the  state,  and  that  plaintiff  wishes  to  obtain  service  by  publica- 
tion, is  sufficient,  and  due  publication  of  notice  will  confer  jurisdiction  to 
grant  a  divorce.  Roberts  v.  Fagan,  92  P.  559,  76  Kan.  536.  Civ.  Code  Proc. 
§  73  (Gen.  St.  1905,  §  4950),  not  requiring  the  residence  of  plaintiff  to  be 
stated  in  the  affidavit  for  service  by  publication  in  divorce,  such  a  statement 
is  unnecessary.  Id. 

An  affidavit,  in  an  action  for  divorce,  as  a  basis  for  service  by  publica- 
tion, alleging  that  S.  is  the  plaintiff  and  that  defendant  is  not  a  resident  of 
the  territory,  "but  to  the  best  of  her  knowledge  and  belief  is  a  resident  of 

,  and  that  service  of  summons  in  this  case  cannot  be  had  upon  the 

said  defendant  in  the  territory,"  does  not  comply  with  Wilson's  Rev.  &  Ann. 
St.  1903,  §  4377,  and  a  judgment  rendered  thereon  is  void  for  want  of  juris- 
diction ;  the  affidavit  failing  to  state  what  diligence  was  used,  or  the  nature 
of  the  action,  and  that  at  the  time  of  the  making  of  the  affidavit  defend- 
ant was  out  of  the  territory.  Cordray  v.  Cordray,  91  P.  781,  19  Okl.  36. 

o  i  Aherne  v.  Wa  Keeney  L,and  &  Investment  Co.,  108  P.  842,  82  Kan.  435. 

(344) 


Art.  2)  PROCESS  §  498 

tion),  or  the  petition  will  be  taken  as  true,  and  judgment,  the  na- 
ture of  which  shall  be  stated,  will  be  rendered  accordingly."  ! 

A  publication  notice  which  advises  defendant  of  the  nature  of 
the  action  and  of  his  interest  therein  is  sufficient.53 

A  publication  notice  need  not  mention  any  of  the  defendants  ex- 
cept those  to  be  served  by  publication ;  5J  but  the  latter  must  be 
designated  or  described  with  reasonable  certainty.55  It  is  suffi- 

52  Sess.  Laws  1919,  c.  145,  §  3,  amending  Rev.  Laws  1910,  §  4725. 

A  publication  notice  held  to  comply  with  the  requirements  of  Rev.  Laws 
1910,  §  4725.  Gates  v.  Freeman,  57  Okl.  449,  157  P.  74. 

A  publication  notice,  which  in  its  heading  contains  the  name  of  the  court 
and  the  county  and  state,  which  is  attested  by  the  clerk  of  the  district  court 
with  the  seal  of  the  district  court  attached  thereto,  and  which  notice  de- 
scribes the  land  as  being  in  the  same  county  named  in  the  heading,  when 
construed  liberally,  as  required  by  Code,  §  4,  is  sufficient,  so  far  as  stating 
4  the  court  in  which  the  petition  is  filed,  under  the  provisions  of  Code,  §  74. 
Townsend  v.  Burr,  60  P.  477,  9  Kan.  App.  810. 

Newspaper. — A  newspaper  published  on  each  day  of  the  week  except  Mon- 
day is  a  "daily  newspaper."  Alley  v.  City  of  Muskogee,  53  Okl.  230,  156 
P.  315. 

Evidence  held  to  show  that  a  certain  newspaper  was  a  "newspaper  of  the 
county  having  general  circulation  therein."  Hesler  v.  Coldron,  116  P<  787, 
29  Okl.  216. 

Kansas  rule. — The  notice  required  to  obtain  service  by  publication  is  not 

process  within  Const,  art.  3,  §  17,  or  Code  Civ.  Proc.  §  700  (Gen.  St.  1901,  § 

5196),  and  need  not  bear  the  style  "The  State  of  Kansas,"  nor  the  seal  of 

the  court  in  which  suit  is  pending,  nor  be  signed  or  issued  by  the  clerk. 

;  McKenna  v.  Cooper,  101  P.  662,  79  Kan.  847. 

That  publication  notices  in  divorce  proceedings  did  not  run  in  the  name 
of  the  state  did  not  render  the  divorces  void.  Gordon  v.  Munn,  125  P.  1,  87 
Kan.  624,  Ann.  Cas.  1914A,  783,  rehearing  denied  127  P.  764,  88  Kan.  72, 
Ann.  Cas.  1914A.  783. 

53  Head  v.  Daniels.  15  P.  911,  38  Kan.  1. 

In  an  action  to  quiet  title,  a  notice  by  publication  which  describes  the  real 
estate  by  the  lot  and  block  numbers  of  an  addition  to  a  city  according  to 
the  recorded  plat  thereof,  which  plat  designates  the  land  by  its  proper  gov- 
ernment subdivision,  which  had  been  of  record  for  a  number  of  years  and 
recognized  by  the  city  and  the  public  generally  and  acted  upon  by  the  author- 
ities for  the  purposes  of  taxation,  sufficiently  identifies  the  property  affected 
to  give  the  court  jurisdiction  as  against  defendant  who  might  have  impeached 
the  plat  as  invalid.  Oaldwell  v.  Bigger,  90  P.  1095,  76  Kan.  49. 

54  Head  v.  Daniels,  15  P.  911,  38  Kan.  1. 

55  Service  of  summons  by  publication  on  a  married  woman,  who  had  borne 
the  name  of  "Durham"  for  nearly  20  years,  by  her  maiden  name  of  "Morris," 
was  invalid.    Morris  v.  Tracy,  48  P.  571,  58  Kan.  137. 

In  an  action  to  quiet  title,  where  the  only  attempt  to  obtain  jurisdiction 
of  Florence  D.  Whitney,  an  unmarried  woman  was  by  publication  in  which 
she  was  referred  to  as  " Whitney,  and Whitney,  his  wife,  whose 

(345) 


§§    498-499  COMMENCEMENT  OF  ACTION  (Cll.  91 

cient,  however,  where  the  name  contained  in  the  notice  aud  the  cor- 
rect name  of  the  defendant  are  idem  sonans.58 


PUBLICATION  NOTICE 

(Caption.) 

The  State  of  Oklahoma,  to  the  Above  Named  Defendant,  C.  D.— 

Greeting : 

You  will  take  notice  that  you  have  been  sued  in  the  above  named 
court  by  the  above  named  plaintiff  for  (state  relief  asked  for),  and 
you  must  answer  the  petition  filed  therein  by  said  plaintiff  on  or 

before  the day  of ,  19 — ,  or  said  petition  will  be  taken 

as  true  and  a  judgment  for  said  plaintiff  will  be  rendered  accord- 
ingly in  the  sum  of  —  dollars,  and  interest  thereon  at  the 

rate  of per  cent,  per  annum  from  the day  of , 

19 — ,  and  costs,  and  in  the  attachment  therein  had  and  granted. 

— ,  Court  Clerk, 

By f  Deputy. 

X.  Y.,  Attorney  for  Plaintiff. 

§  499.    Mailing  with  petition 

"Where  service  by  publication  is  proper  a  copy  of  the  petition, 
with  copy  of  the  publication  notice  attached  thereto,  shall,  within  six 
days  after  the  first  publication  is  made,  be  inclosed  in  an  envelope 
addressed  to  the  defendant  at  his  place  of  residence  or  business, 
postage  paid,  and  deposited  in  the  nearest  post-office,  unless  the 
plaintiff  shall  make  and  file  an  affidavit  that  such  residence  or  place 
of  business  is  unknown  to  the  plaintiff  and  cannot  be  ascertained 
by  any  means  within  the  control  of  the  plaintiff."  5T 

This  statute  is  mandatory.58 

first  names  are  unknown,"  without  any  other  description,  and  where  there 
was  no  appearance  or  waiver  of  summons,  the  court  did  not  acquire  juris- 
diction of  her,  and  a  judgment  against  her  on  such  notice  is  void.  Whitney 
v.  Masemore,  89  P.  914,  75  Kan.  522,  11  L.  R.  A.  (N.  S.)  676,  121  Am.  St. 
Rep.  442. 

ce  A  notice  of  publication  of  summons,  describing  a  defendant  whose  name 
was  Elizabeth  D.  Borthwick  as  Elizabeth  D.  Bothwick,  was  sufficient;  the 
names  being  idem  sonans.  Barrel  v.  Neef,  102  P.  838,  80  Kan.  348. 

A  default  judgment  quieting  title  based  upon  service  made  by  publishing 
a  notice  which  stated  defendant's  name  as  Joseph  Remer  is  valid  against 
Joseph  Renner;  the  names  being  idem  sonaus.  Puckett  v.  Hetzer,  82  Kan. 
726,  109  P.  285,  136  Am.  St.  Rep.  127. 

57  Rev.  Laws  1910,  §  4724. 

c  s  Rev.  Laws  1910,  §  4724,  requiring  copy  of  petition  with  copy  of  nublica- 

(346) 


Art.  2)  PROCESS  §  500 

§  500.     Proof  of  publication 

"Service  by  publication  shall  be  deemed  complete  when  it  shall 
have  been  made  in  the  manner  and  for  the  time  prescribed  in  the 
preceding  section;  and  such  service  shall  be  proved  by  the  affidavit 
of  the  printer;  or  his  foreman  or  principal  clerk,  or  other  person 
knowing  the  same.  No  judgment  by  default  shall  be  entered  on 
such  service  until  proof  thereof  be  made,  and  approved  by  the 
-court,  and  filed."  59 

Where  service  is  had  upon  a  defendant  by  publication,  and  the 
affidavit  of  the  printer  does  not  show  that  the  notice  was  published 
the  requisite  length  of  time  before  answer  day,  and  the  judgment 
founded  upon  such  service  is  challenged  for  want  of  sufficient  pub- 
lication, the  court  may  examine  copies  of  the  newspaper  in  which 
the  notice  appeared,  and  also  receive  evidence  of  the  publisher  of 
the  paper  and  other  parties,  to  prove  that  the  publication  was  had 
for  a  sufficient  time  to  comply  with  the  provisions  of  the  statute.60 

An  'order  approving  service  of  publication  on  defendants  after 
the  evidence  is  submitted  is  not  an  abuse  of  discretion.61 

PROOF  OF  PUBLICATION 

(Caption.) 

G.  H.,  of  lawful  age,  being  first  duly  sworn,  on  his  oath,  says : 

That  he  is  the  publisher  (or  editor)  of  the ,  a  newspaper 

printed  and  of  general  circulation  m county,  state  of  Okla- 
homa, and  that  the  notice  by  publication,  a  copy  of  which  is  hereto 

attached,  was  published  in  said  paper  for consecutive  days 

(or  weeks)  the  first  publication  thereof  being  on  the  •  day 


tion  notice  attached  to  be  mailed  to  defendant's  address  within  six  days 
after  first  publication,  unless  plaintiff  files  affidavit  that  residence  or  place 
of  business  is  unknown  and  cannot  be  ascertained,  is  mandatory.  Stumpff 
v.  Price  TOkl.)  177  P.  109.  Where  there  are  iwo  nonresident  defendants,  a 
copy  of  petition  and  publication  notice  addressed  to  them  jointly  at  their 
place  of  residence  does  not  comply  with  Rev.  Laws  1910,  §  4724,  as  that 
shows  service  only  on  one  defendant,  and  uncertainty  to  which  makes  pub- 
lication service  prima  facie  void  as  to  both,  so  that  court  did  not  acquire 
jurisdiction.  Id.  It  is  mandatory,  and  a  condition  precedent  to  the  granting 
of  a  divorce.  Rodgers  v.  Nichols,  83  P.  923,  15  Okl.  579. 

59  Rev.  Laws  1910,  §  4726. 

eo  Robinson  v.  Hall.  5  P.  763,  33  Kan.  139. 

ei  Earl  v.  Cotton,  96  P.  348,  78  Kan.  405. 

(347) 


§§    500-501  COMMENCEMENT  OF  ACTION  (Ch.  9" 

of ,  19 — ,  and  the  last  publication  thereof  being  on  the 

day  of ,  19—.  G.  H. 

Subscribed  and  sworn  to  before  me  this day  of ,  19 — .. 

X.  Y.,  Notary  Public. 

My  commission  expires  ,  19 — . 

(Attach  copy  of  publication  notice.) 

DIVISION  IV. — EXEMPTION  FROM  SERVICE 

§  501.     Persons  attending  court — Witnesses 

One  attending  court  as  a  material  witness  or  as  a  suitor  in  a  coun- 
ty other  than  that  of  his  residence  is  exempt  from  service  of  sum- 
mons in  action  brought  in  that  county,  though  his  attendance  is 
not  in  obedience  to  a  subpoena.62 

This  exemption  allowed  a  witness  extends  to  the  service  of  sum- 
mons on  him  in  his  representative  capacity  as  managing  officer  or 

agent  of  a  corporation.63 

* 

ezBearman  v.  Hunt  (Okl.)  171  P.  1124;   Rev.  Laws  1910,  §  5064. 

A  suitor  who  is  in  attendance,  either  in  his  own  behalf  or  under  process, 
outside  the  territorial  judicial  jurisdiction  of  his  residence,  is  exempt  from 
service  of  summons  while  in  attendance  on  such  court,  or  in  going  or  re- 
turning therefrom.  Bolz  v.  Crone,  67  P.  1108,  64  Kan.  570. 

Nonresident  trustee  in  bankruptcy,  appointed  in  Kansas,  is  exempt  from 
service  of  summons  while  within  the  state  to  sell  property  under  order  of 
sale  issued  by  referee  in  bankruptcy.  Eastern  Kansas  Oil  Co.  v.  Beutner,  101 
Kan.  505,  167  P.  1061. 

A  nonresident,  while  within  the  state  to  attend  court  as  a  witness  and  in 
actual  attendance,  is  exempt  from  service  of  summons  in  a  civil  action. 
Gillmore  v.  Gillmore,  137  P.  958,  91  Kan.  293,  295,  51  L.  R.  A.  (N.  S.)  838,  judg- 
ment modified  on  rehearing  139  P.  386,  91  Kan.  707,  51  L.  R.  A.  (N.  S.)  834. 

A  resident  of  the  state  while  in  attendance  on  a  federal  court  in  a  county 
other  than  that  of  his  residence  as  a  party  is  exempt  from  service  of  sum- 
mons in  an  action  brought  in  that  county.  Underwood  v.  Fosha,  85  P.  564, 
73  Kan.  408,  9  Ann.  Cas.  833. 

A  resident  of  the  county  while  in  attendance  on  a  federal  court  in  a  coun- 
ty other  than  that  of  his  residence  as  a  material  witness,  though 'he  is  not 
under  subpoena,  is  exempt  from  service  of  summons  in  an  action  brought  in 
that  county.  Underwood  v.  Fosha,  85  P.  564,  73  Kan.  408,  9  Ann.  Cas.  833. 

One  who  is  in  good  faith  attending  court  as  a  witness  in  a  county  other 
than  that  of  his  residence  is  exempt  from  service  of  summons  in  an  action 
brought  in  that  county,  but  if  he  is  not  a  party  to  the  litigation,  and  is  not 
attending  as  a  bona  fide  witness,  he  may  be  legally  served  with  summons, 
and,  where  there  is  conflicting  testimony  as  to  whether  he  is  attending  court 
as  a  witness  in  good  faith,  the  finding  of  the  trial  court  that  he  did  not  da 
so  is  binding  on  him.  Reiff  v.  Tressler,  120  P.  360,  86  Kan.  273. 

c3  Commonwealth  Cotton  Oil  Co.  v.  Hudson,  62  Okl.  23,  161  P.  535. 

Officer  of  a  foreign  corporation,  coming  into  state  to  testify  in  action 

(348) 


Art.  2)  .  PROCESS  §§  501-502 

Where  defendant  went  voluntarily  into  another  county  on  his 
private  business,  and  was  not  going  to,  returning  from,  or  attend- 
ing court  under  a  subpoena,  and  was  not  in  such  county  through 
any  fraud  or  procurement  of  plaintiff,  he  was  subject  to  service  of 
summons  in  the  county,  in  an  action  against  him.6.4 

Nonresident  plaintiffs  who  voluntarily  come  within  the  jurisdic- 
tion of  courts  to  attend  the  trial  of  a  suit  commenced  by  them 
against  citizens  of  the  state  are  not  exempt  from  service  of  sum- 
mons in  an  action  by  the  defendants  for  relief  connected  with  the 
suit  when  complete  adjustment  of  rights  of  parties  cannot  be  had  in 
first  action.65 

A  nonresident,  in  the  state  to  attend  the  taking  of  depositions 
in  a  cause  to  which  he  is  party,  is  privileged  from  service  of  process, 
though  he  transacts  other  business;  66  but  he  loses  his  right  to  ex- 
emption if  he  transact  other  business,  which  was  the  controlling 
motive  for  his  presence  in  state,  and  fails  to  leave  within  a  reason- 
able time.67 

DIVISION  V. — OBJECTIONS  AND  AMENDMENTS 

§  502.     Motion  to  quash — Form 

To  contest  the  service  of  a  summons,  the  proper  motion  is  to  set 
aside  the  service,  not  to  dismiss  the  action.68 

•wherein  corporation  is  plaintiff,  is  privileged  from  service  of  summons  in 
another  action  against  corporation  in  county  in  which  he  is  attending  as  wit- 
ness, although  he  is  not  subpoenaed.  Lonsdale  Grain  Co.  v.  Neil  (Okl.)  175 
P.  823.  Exemption  allowed  a  witness,  under  Rev.  Laws  1910,  §  5064,  while 
actually  attending  court  to  testify,  from  service  of  summons  in  suit  in  a 
county  in  which  he  does  not  reside,  extends  to  service  of  summons  on  him 
in  his  representative  capacity  as  officer  of  a  corporation.  Id.  Under  Rev. 
Laws  1910,  §  5064,  nonresident  who  in  good  faith  comes  into  state  to  testify 
in  cause  is  exempt  from  service  of  summons  in  civil  action  against  him,  or 
against  corporation  of  which  he  is  an  officer,  while  coming,  attending,  and 
during  a  reasonable  time  for  return.  Id. 

e*  Clark  v.  Willis,  44  Okl.  303,  144  P.  587. 

esLivengood  v.  Ball,  63  Okl.  93,  162  P.  768,  L.  R.  A.  1917C,  905. 

ee  Burroughs  v.  Cocke  &  Willis,  56  Okl.  627,  156  P.  196,  L.  R.  A.  1916E,  1170. 

67  Burroughs  v.  Cocke  &  Willis,  56  Okl.  627,  156  P.  196,  L.  R.  A.  1916E,  1170. 

68  Foster  v.  Markland,  14  P.  452,  37  Kan.  32. 

Where  an  action  was  begun  by  two  and  summons  notified  defendant  of  a 
suit  by  a  named  plaintiff  and  others,  refusal  to  quash  service  of  summons 
because  of  omission  of  name  of  other  parties  plaintiff  was  nvot  error.  Kuy- 
kendall  v.  Lambert  (Okl.)  173  P.  657. 

Under  Code  Civ.  Proc.  §  701,  providing  that,  when  the  sheriff  is  a  party, 
the  summons  shall  be  directed  to  the  coroner,  a  summons  is  irregular  and 

(349) 


§    502  COMMENCEMENT  OF  ACTION  (Ch.  9 

A  summons  issued  before  the  petition  is  filed  and  service  thereon 
should  be  quashed  on  motion.69 

Where  it  is  shown  without  contradiction  that  defendant  was  a 
resident  of  the  state,  an  affidavit  for  publication  service  should 
have  been  quashed ; 70  but  a  motion  to  quash  service  by  publication 
should  be  overruled  where  plaintiff  was  entitled  to  make  such  serv- 
ice on  a  ground  incidentally  stated  in  the  affidavit  in  terms  not 
sufficiently  specific  as  to  facts.71 

A  motion  to  set  aside  a  service  of  summons  by  publication  on  a 
nonresident  of  the  state,  in  an  action  which  joins  claims  only  per- 
sonal in  their  nature  with  claims  affecting  real  estate  situated  in 
the  state,  will  be  sustained,  if  seasonably  made.72 

Service  by  publication,  based  upon  an  affidavit  which  contains 
no  reference  to  a  defendant  attempted  to  be  served,  will  be  set  aside 
on  motion  of  such  defendant,  subsequently  made.73 

Where  a  person,  by  fraud  and  deceit,  inveigles  another  into  the 
jurisdiction  of  the  court,  for  the  purpose  of  suing  him,  and  of  ob- 
taining service  of  summons  upon  him  in  that  jurisdiction,  the  sum- 
mons should  be  set  aside.74 

A  motion  to  quash,  because  defendant  was  given  22  days  to  an- 
swer, was  properly  overruled.75 

should  be  set  aside  on  motion  where  it  is  directed  to  the  sheriff  but  delivered 
to  the  coroner  and  served  by  him.  Pelham  v.  Edwards,  26  P.  41,  45  Kan.  547. 

In  a  summons  issued  on  a  writ  of  error  the  names  of  the  parties,  "Patmor" 
and  "Rombauer,"  were  spelled  "Palmer"  and  "Rambauer,"  respectively,  but 
the  summons  was  correct  in  other  respects,  was  duly  served  on  the  attor- 
ney of  record,  and  the  errors  were  paused  by  no  fault  of  plaintiff  in  error. 
Held,  that  the  service  will  not  be  set  aside  on  a  motion  filed  more  than  four 
months  afterwards,  and  more  than  one  year  after  the  rendering  of  the  judg- 
ment complained  of,  and  after  the  time  for  bringing  a  case  to  the  Supreme 
Court  has  elapsed.  Patmor  v.  Rombauer,  21  P.  284,  41  Kan.  295. 

Evidence  as  to  the  coming  of  one  defendant  into  jurisdiction  of  county 
district  court  the  commencement  of  action  and  service  of  process  on  him 
there,  and  subsequent  service  on  other  defendants  in  another  county  held 
not  to  show  an  abuse  of  judicial  process.  People's  Nat.  Bank  of  Kansas 
City  v.  Niquette,  103  Kan.  410,  493,  174  P.  581. 

6»Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Lambert,  121  P.  654,  31  Okl.  300,  Ann. 
Cas.  1913E,  329. 

TO  Tolbert  v.  State  Bank  of  Paden,  121  P.  212,  30  Okl.  403. 

71  Richardson  v.  Howard,  51  Okl.  240,  151  P.  887. 

72  Zimmerman  v.  Barnes,  43  P.  764.  56  Kan.  419. 

73  Rawson  v.  Sherwood,  53  P.  69,  59  Kan.  776. 

74  Van  Horn  v.  Great  Western  Mfg.  Co.,  15  P.  562,  37  Kan.  523. 

75  Armstrong  v.  May,  55  Okl.  539,  155  P.  238. 

(350) 


Art.  2)  PROCESS  §§  502-503 

Where  full  hearing  is  given  before  trial  on  a  motion  to  quash  the 
service  and  the  motion  is  overruled,  it  is  not  error  to  refuse  to  re- 
open the  issue,  and  submit  the  question  to  the  jury.78 

Where,  upon  a  motion  to  set  aside  summons  and  service,  evidence 
is  offered,  and  judgment  rendered  "that  such  summons  be,  and  the 
same  is  hereby,  quashed  and  set  aside,  and  declared  null  and  void, 
at  the  costs  of  the  plaintiff,"  and  not  objection  or  exception  is  made 
to  the  judgment,  a  motion  for  a  rehearing  thereof  filed  seven  days 
after  the  adjournment  of  the  term  does  not  give  the  court  jurisdic- 
tion to  review  such  judgment; 77  but  where  a  motion  to  set  aside 
service  on  defendant  is  sustained,  and  a  motion  for  rehearing  is  filed, 
the  court,  by  continuing  the  hearing  of  that  motion  to  the  next 
term,  may  preserve  jurisdiction  to  correct  an  error  in  its  earlier  rul- 
ing.78 

MOTION  TO  QUASH  SUMMONS  AND  SERVICE  AND  RETURN  THEREOF 

(Caption.; 

Special  Appearance  and  Motion  to  Quash  Service  of  Summons  and 

Return   Thereof 

Now  comes  the  defendant,  A.  B.,  a  corporation,  and,  appearing 
specially  for  the  purposes  of  this  motion  only,  moves  the  court  to 
quash,  set  aside,  and  hold  for  naught  the  purported  service  of  the 
summons  and  return  thereof,  upon  this  defendant,  for  the  follow- 
ing reasons,  to-wit : 

1.  Because  said  summons  was  not  served  and  returned  as  re- 
quired by  law. 

2.  Because  said  summons  was  not  served  upon  any  officer  or 
agent  of  this  defendant,  or  upon  any  other  person  upon  whom 
service  of  summons  might  be  lawfully  made. 

,  'Attorneys  for  Defendant. 

For  the'Purpose  of  This  Motion  Only. 
§  503.     Amendment 

Errors  curable  by  amendment  include  clerical  errors  apparent  by 
the  record; 79  a  return  to  a  summons  by  a  deputy  sheriff  in  his  own 

TO  Conrath  v.  Johnston,  128  P.  1088,  36  Okl.  425. 

77  Cannon  v.  Birney,  51  P.  298,  6  Kan.  App.  188. 

78  Dye  v.  Denver  &  R.  G.  R.  Co.,  101  Kan.  666,  168  P.  1087. 

7»  Summons  was  issued  November  9,  1887.  It  designated  the  answer  day 
to  be  the  9th  day  of  December,  1887.  It  directed  the  sheriff  to  return  it 

(351) 


§§    503-504  COMMENCEMENT  OP  ACTION  (Ch.  9 

name;80  and  the  omission  of  the  signature  of  the  clerk  from  a 
summons  otherwise  regular.81 

Officers  are  allowed,  with  liberality,  to  amend  their  returns  of 
service  of  process.82 

§  504.    Where  service  by  publication 

Where  the  jurisdictional  facts  exist,  and  the  affidavit  for  publica- 
tion is  defective  in  the  statement  of  matters  required  by  statute,  it 
is  amendable,  even  after  judgment;  but  where  there  is  a  total  want 
of  an  allegation  in  the  affidavit  of  some  material  matter  required 
by  statute,  the  service  is  void,  and  'the  defect  cannot  be  cured  by 
amendment.83 

December  19,  1887,  Instead  of  November  19,  1887.  Held,  that  the  summons 
was  not  void,  but  that  the  error  which  was  apparent  by  the  record  could 
be  corrected  at  any  time.  Alford  v.  Hoag,  54  P.  1105,  8  Kan.  App.  141. 

80  First  Nat.  Bank  v.  Ellis,  114  P.  620,  27  Okl.  699,  Ann.  Cas.  1912C,  (587. 

si  Aultman  &  Taylor  Machinery  Co.  v.  Wier,  74  P.  227,  67  Kan.  674. 

82  Payne  v.  Long-Bell  Lumber  Co.,  60  P.  235,  9  Okl.  683. 

A  sheriff  will  be  permitted  to  amend  his  return  of  process  so  as  to  make  it 
conform  to  the  facts.  Jordan  v.  Johnson,  42  P.  415,  1  Kan.  App.  656. 

Where  an  officer  making  return  of  service  of  summons  inadvertently  omits 
the  date  of  service,  the  return  may  be  amended  by  leave  of  court.  Lee  v. 
State,  47  Okl.  738,  150  P.  665. 

The  summons  directed  the  sheriff  to  summon  James  M.  Hendry.  The  re- 
turn showed  that  he  had  duly  served  "James  M.  Dendry,  the  within-named 
defendant."  Held,  that  the  return  could  be  amended,  after  the  expiration  of 
the  sheriff's  term  of  office,  to  show  that  he  had  in  fact  served  the  defendant, 
"James  M.  Hendry."  Alford  v.  Hoag,  54  P.  1105,  8  Kan.  App.  141. 

ss  City  Nat.  Bank  v.  Sparks,  50  Okl.  648,  151  P.  225. 

Where  jurisdictional  facts  necessary  to  warrant  service  by  publication 
existed  at  commencement  of  action,  and  the  affidavit  for  publication  was 
defective  only  in  stating  inferentially  or  otherwise  any  matter  required  by 
statute  to  be  alleged  therein,  it  is  amendable.  Chaplin  v.  First  Bank  of 
Hitchcock  (Okl.)  181  P.  497;  Reister  v.  Land,  76  P.  156,  14  Okl.  34;  Ham- 
merslough  v.  Hackett,  1  P.  41,  30  Kan.  57. 

Where  defendants  contended  that  an  amendment  to  a  proof  of  publication 
should  be  refused  as  not  in  furtherance  of  justice,  on  the  ground  that  plaintiff 
had  agreed  to  notify  defendants'  counsel  of  the  time  when  suit  would  be 
brought,  but  the  evidence  failed  to  show  any  actual  promise  or  refusal1  of 
plaintiff  to  give  such  notice,  it  not  being  his  duty  to  do  so,  held,  that  there 
was  no  ground  for  refusing  the  amendment  Hackett  v.  Lathrop,  14  P.  220, 
36  Kan.  661. 

An  affidavit  for  service  by  publication,  if  voidable,  may  by  leave  of  court 
be  corrected  after  judgment  by  another  affidavit  showing  that  the  requisite 
facts  existed  at  the  time  of  filing  the  original  affidavit.  Morris  v.  Robbins, 
111  P.  470,  83  Kan.  335. 

Where  the  affidavit  to  procure  notice  by  publication,  under  Code  Civ.  Proc. 

(352) 


Art.  3)  APPEARANCE  §§  505-507 

§  505.     Waiver  of  objections 

After  presentation  of  a  motion  to  dismiss  because  plaintiff  im- 
properly named  a  resident  of  county  as  a  defendant  solely  to  give 
jurisdiction  to  serve  movant,  the  real  defendant,  with  summons 
in  another  county,  it  is  too  late  to  raise  objection  going  merely  to 
manner  of  service.84 

Defendant  did  not  waive  a  fatal  defect  in  the  summons  by  con- 
fessing judgment  on  an  interplea  of  a  third  party  after  his  motion 
to  quash  the  summons  was  overruled.88 

In  trespass  for  abuse  of  legal  process,  subsequent  irregularities 
in  the  action  in  which  the  process  issued,  for  which  the  defendant 
was  not  responsible,  cannot  be  considered  to  characterize  the  pre- 
vious wrongful  acts.88 

ARTICLE  III 

APPEARANCE 

Sections 

506.  For  infant. 

507.  General  appearance. 

508.  Special  appearance. 

509.  Effect. 

510.  Waiver  of  process. 

511.  Objections — Preservation  and  waiver. 

§  506.    For  infant 

An  infant  defendant  cannot  waive  issuance  and  service  of  sum- 
mons, nor  can  his  guardian  or  any  other  person  do  so  for  him.87 

§  507.     General  appearance 

A  general  appearance  is  entered  by  any  plea  or  proceeding  which 
raises  nonjurisdictional  questions  involving  the  merits,88  regard- 

§  74,  is  defective  merely,  the  defect  may  be  cured  by  amendment  after  pub- 
lication.   Weaver  v.  Lockwood,  43  P.  311,  2  Kan.  App.  62. 

See  Appearance. 

s*  Maynard  v.  State  Bank  of  Lehigh,  105  Kan.  259,  182  P.  542. 

85  State  v.  Parks,  126  P.  242,  34  Okl.  335. 

88  Wurmser  v.  Stone,  40  P.  993,  1  Kan.  App.  131. 

87  Iowa  Land  &  Trust  Co.  v.  Dawson,  134  P.  39,  37  Okl.  593. 
Appearance  cannot  be  made  for  an  infant  before  service  of  process.    Echols 

v.  Reeburgh   (Okl.)   161  P.  1065- 

88  City  Nat.  Bank  v.  Sparks,  50  Okl.  648,  151  P.  225;   Walton  v.  Kennamer, 
136  P.  584,  39  Okl.  629;    Haynes  v.  City  Nat.  Bank  of  Lawton,  121  P.  182, 
30  Okl.  614 ;    Kaw  Life  Ass'n  v.  Lemke,  19  P.  337,  40  Kan.  142,  judgment  af- 

HON.PL.&  PRAC.— 23  (353) 


§    507  COMMENCEMENT  OF  ACTION  (Oh.  9 

less  of  the  form  of  pleading  as  distinguished  from  the  substance,89 
and  though  it  be  denominated  a  special  appearance.90 

A  general  appearance  is  entered  by  an  objection  or  filing  of  a 
motion  based  on  both  jurisdictional  and  nonjurisdictional 
grounds,91  the  filing  of  a  motion  before  or  after  judgment,  based  on 

firmed  20  P.  512,  40  Kan.  661 ;  Anderson  v.  Burchett,  30  P.  174.  48  Kan.  781 ; 
Wells  v.  Patton,  33  P.  15,  50  Kan.  732 ;  Linney  v.  Thompson,  45  P.  456,  3  Kan. 
App.  718 ;  Burnham  v.  Lewis,  70  P.  337,  65  Kan.  481 ;  Burnham  v.  Lewis,  70 
P.  337,  65  Kan.  481 ;  Hanson  v.  Hanson.  122  P.  100,  86  Kan.  622. 

Where  defendants  appeared  and  submitted  nonjurisdictional  questions 
which  could  not  be  determined  on  special  appearance,  they  recognized  court's 
general  jurisdiction  and  waived  all  irregularities  in  manner  in  which  it  ob- 
tained jurisdiction  of  their  persons.  Chicago,  R.  I.  &  P.  Ry.  Co-  v.  Austin,  63 
Okl.  169,  163  P.  517. 

The  defendant's  presence  and  plea  of  not  guilty  gives  the  superior  court 
jurisdiction  of  the  person.  Ripley  v.  State  (Okl.  Cr.  App.)  190  P.  710. 

Where  defendants  summoned  personally  and  those  summoned  by  publica- 
tion service  join  in  pleading]  or  motion  raising  questions  of  law  and  ques- 
tions of  fact  involved  in  general  issue,  general  appearance  is  entered  by  all. 
Meador  v.  Manlove,  156  P.  731,  97  Kan.  706. 

Where  in  a  will  contest  after  probate,  the  contestants  invoke  the  court's 
jurisdiction  on  the  merits,  this  operates  as  a  general  appearance  waiving 
right  to  attack  the  court's  jurisdiction.  In  re  Blackfeather's  Estate,  54  Okl. 
1,  153  P.  839. 

Where  pending  appeal  to  Supreme  Court  cause  was  transferred  to  district 
court  pursuant  to  Laws  1913,  c-  77,  and  Supreme  Court's  mandate  was  lodged 
in  district  court,  and  defendants  appeared  generally  therein,  they  waived 
right  to  object  to  its  jurisdiction,  though  chapter  77  was  afterwards  held  un- 
constitutional. Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Austin,  63  Okl.  169,  163  P.  517. 

A  general  appearance  and  plea  to  the  merits  give  the  court  jurisdiction  of 
the  person  of  defendant.  Anglo-American  Packing  &  Provision  Co.  v.  Turner 
Casing  Co.,  8  P.  403,  34  Kan.  340- 

89Lindley  v.  Hill,  58  Okl.  71,  158  P.  356;  Hill  v.  Persinger,  57  Okl.  663, 
157  P.  744;  Edmondston  v.  Porter  (Okl.)  162  P.  692. 

Where  a  defendant  appears  in  court,  and  moves  to  dissolve  the  attach- 
ment on  the  merits  of  the  proceedings,  such  as  the  insufficiency  of  the  at- 
tachment affidavit,  he  enters  a  general  appearance  in  the  case.  Raymond  v. 
Nix,  49  P.  1110,  5  Okl.  656. 

00  A  defendant,  who  seeks  to  enter  a  special  appearance  in  a  cause  by 
motion,  and  sets  forth  therein  both  jurisdictional  and  nonjurisdictional 
grounds  for  dismissal,  makes  a  general  appearance,  and  the  fact  that  he 
called  it  a  special  appearance  avails  him  nothing.  Nichols  &  Shepard  Co.  v. 
Baker,  73  P.  302,  13  Okl.  1 ;  Thompson  v.  Pfeiffer,  71  P.  828,  66  Kan.  368 ; 
St.  Louis  Cordage  Mills  v.  Western  Supply  Co.,  54  Okl.  757,  154  P.  640. 

ai  Gorham  v.  Tanquerry,  48  P.  916,  58  Kan.  233 ;  Ziska  v.  Avey,  122  P. 
722,  36  Okl.  405. 

Where  a  defendant  appears  after  judgment  and  moves  to  set  same  aside 
for  want  of  jurisdiction,  and  because  the  petition  failed  to  state  a  cause  of 

(354) 


Art.  3)  APPEARANCE  §  507 

nonjurisdictional  grounds;92  also  where  he  moves  for  and  pro- 
cures a  stay  of  execution  after  judgment,93  the  filing  of  a  demur- 
action,  and  the  action  was  not  a  proper  .one  for  service  by  publication,  it 
is, a  general  appearance.  Willett  v.  Blake,  39  Okl..  261,  134  P.  1109. 

Defendant  corporation,  by  attacking  a  default  judgment  rendered  against 
it  by  a  petition  for  a  new  trial  based  in  part  on  grounds  not  jurisdictional, 
thereby  enters  a  general  appearance,  which  waives  any  defect  in  the  service 
of  the  summons.  Neosho  Valley  Inv.  Co.  v.  Cornell,  56  P.  475,  60  Kan.  282. 

A  motion  by  defendant  to  set  aside  a  judgment  rendered  against  him  which 
contains  both  jurisdictionai  and  noujurisdictional  grounds  constitutes  a  gen- 
eral appearance  in  the  case.  Barnett  v.  Holyoke  Mut.  Fire  Ins.  Co.,  97  P. 
962,  78  Kan.  630. 

A  defendant  who,  in  making  a  "special  appearance  to  set  aside  the  service 
of  a  summons,"  sets  up  and  submits  nonjurisdictional  matters  relating  to 
the  merits,  thereby  waives  the  service  of  summons  and  submits  to  the  juris- 
diction. Frazier  v.  Douglass,  57  Kan.  809,  48  P.  36. 

Where  a  nonresident  defendant,  defectively  served  with  notice,  makes  a 
special  appearance  challenging  the  jurisdiction,  and  invites  an  inquiry  as  to 
the  sufficiency  of  a  pleading  on  a  matter  involving  the  merits,  he  submits 
himself  to  the  jurisdiction  of  the  court,  and  waives  any  defect  in  the  process. 
Thompson  v.  Pfeiffer,  71  P.  828,  66  Kan.  368- 

02  By  a  general  appearance  to  set  aside  a  default  judgment  entered  without 
jurisdiction  of  the  person  the  judgment  is  validated.  Welch  v.  Ladd,  116  P. 
573,  29  Okl.  93.  By  a  general  appearance  defects  in  service  of  summons  are 
waived,  though  such  appearance  is  only  made  on  motion  to  vacate  default 
judgment.  Id. 

By  a  motion  to  set  aside  a  default  judgment  not  made  on  jurisdictional 
grounds  but  to  let  in  a  defense  on  the  merits  defendant  enters  a  general  ap- 
pearance. Welch  v.  Ladd,  116  P.  573,  29  Okl.  93. 

A  defendant,  who  files  a  motion  for  new  trial  after  judgment,  based  on 
nonjurisdictional  grounds,  enters  a  general  appearance.  Trugeon  v.  Gallamore, 
117  P.  797,  28  Okl.  73. 

Action  was  tried  March  12,  1906,  before  the  United  States  commissioner 
acting  as  a  justice  of  the  peace.  Judgment  was  not  rendered  till  May  2,  1907 ; 
counsel  urging  him  to  render  judgment  from  time  to  time.  After  its  entry 
defendant  filed  an  affidavit  for  appeal  and  caused  the  commissioner  to  trans- 
mit the  transcript  to  the  United  States  court,  but  failed  to  have  the  appeal 
docketed.  November  15th  it  was  docketed  by  plaintiff,  and  on  its  motion  was 
affirmea,  and  judgment  rendered  against  defendant.  Held  that,  by  appear- 
ing and  filing  affidavit  for  appeal  and  superseding  the  judgment,  defendant 
entered  appearance  and  could  not  complain  of  the  jurisdiction  of  the  com- 
missioner. Farmers'  Nat.  Bank  of  Vinita  v.  First  Nat.  Bank  of  Pryor  Creek, 
103  P.  685,  24  Okl.  140. 

Where  on  motion  questions  going  to  the  jurisdiction  are  raised  and  also 
questions  which  can  be  raised  only  on  a  general  appearance,  the  parties  will 
be  held  to  have  entered  the  general  appearance,  so  that  defects  in  the  service 
of  the  summons  will  be  deemed  waived,  even  though  such  appearance  be  made 

»3  Hahn  v.  Steinecke.  104  Kan.  660,  180  P.  204;  Woodhouse  v.  Nelson  Land 
&  Cattle  Co.,  139  P.  356,  91  Kan.  823. 

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§    507  COMMENCEMENT  OF  ACTION  (Ql.  9 

after  judgment  and  on  motion  to  vacate  the  same.  Roger's  v.  McCord  Collins 
Mercantile  Co.,  91  P.  864,  19  Okl.  115. 

A  motion  to  set  aside  a  sheriff's  sale  on  foreclosure  constitutes  a  person- 
al appearance  in  the  foreclosure  suit.  Jones  v.  Standiferd,  77  P.  271,  69  Kan. 
513. 

After  decree  entered  against  a  defendant,  based  upon  service  by  publica- 
tion, he  appeared,  and  filed  a  motion  to  redeem  the  land  in  controversy  from 
a  lien  fixed  upon  it  in  the  judgment.  Held,  that  this  act  was,  in  effect,  an 
appearance  in  the  suit,  and  that  the  validity  of  the  judgment  could  not  there- 
after be  questioned  in  an  action  of  ejectment  by  such  defendant.  Baker  T. 
Agricultural  Land  Co.,  61  P.  412,  62  Kan.  79. 

Where  defendant  objected  to. a  judgment  by  default  being  rendered  on  a 
supplemental  petition,  because  no  notice  of  the  application  for  leave  to  file  or 
of  the  filing  of  the  supplemental  petition  had  been  given,  and  also  because 
the  supplemental  petition  did  not  state  facts  sufficient  to  constitute  a  cause 
of  action,  by  challenging  the  sufficiency  of  the  supplemental  petition  he  made 
a  general  appearance  to  it;  and,  as  no  continuance  or  leave  to  plead  was 
asked,  the  court  did  not  err  in  rendering  judgment.  Carter  v.  Tallant,  32  P. 
1108,  51  Kan.  516. 

A  motion  to  vacate  a  judgment  on  nonjurisdictional  grounds  is  general  ap- 
pearance. Morgan  v.  Karcher  (Okl.)  197  P.  433;  First  Nat.  Bank  of  Newton 
v.  Briggs,  50  P.  462,  6  Kan.  App.  684 ;  Lookabaugh  v.  Epperson,  114  P.  738,  28 
Okl.  472 ;  Kaw  Xife  Ass'n  v.  Lemke,  19  P.  337,  40  Kan.  142,  judgment  af- 
firmed 20  P.  512,  40  Kan.  661;  Montgomery  v.  Wm.  Cameron  &  Co.,  49  Okl. 
179,  152  P.  398 ;  Pratt  v.  Pratt,  139  P.  261,  41  Okl.  577. 

Where  an  action  against  a  decedent  was  revived  in  the  name  of  his  ad- 
ministrator, and  the  administrator  thereafter  asked  to  have  a  default  set 
aside,  held,  that  such  appearance  was  a  waiver  of  any  right  to  insist  that  the 
court  had  no  jurisdiction  in  the  first  instance  over  his  decedent.  Moses  v. 
Hoffmaster,  67  P.  459,  64  Kan.  142. 

In  an  action  on  a  note  to  foreclose  a  mortgage,  the  maker  thereof  having 
died,  his  administratrix  and  minor  heirs  were  made  parties  and  served.  A 
decree  was  taken  against  the  minors  as  on  default.  More  than  12  years  aft- 
erwards and  8  years  after  the  youngest  had  reached  majority,  the  heirs  mov- 
ed to  vacate  the  judgment,  because  they  had  not  been  legally  served  and  the 
petition  did  not  state  a  cause  of  action.  Held,  that  the  last  ground  of  the 
motion  constituted  a  general  appearance,  and  cured  any  defective  service  of 
summons.  Barnett  v.  Holyoke  Mut.  Fire  Ins.  Co.,  97  P.  962,  78  Kan.  630. 

Where  judgment  was  entered  against  defendants  over  whom  the  court  did 
not  have  jurisdiction,  and  defendants  voluntarily  request  the  court-to  open 
the  judgment  under  Code  Civ.  Proc.  §  77  (Gen.  St.  1901,  §  4511),  With  per- 
mission to  plead,  and  the  request  is  granted  and  pleadings  are  filed  and  issues 
made  are  rejected,  all  questions  are  waived,  and  the'  parties  are  in  court  for 
all  purposes.  Aherne  v.  Wa-Keeney  Land  &  Investment  Co.,  108  P.  842,  82 
Kan.  435. 

Where,  by  the  court's  order,  one  is  made  a  party  to  an  action,  and  no  prop- 
er summons  is  served  upon  him,  his  general  appearance  in  an  action  to  va- 
cate the  judgment  on  nonjurisdictional  grounds,  as  well  as  because  of  de- 
fects in  the  summons,  waives  all  objection  to  the  summons.  Johnson  Loan  & 
Trust  Co.  v.  Burr,  51  P.  916,  7  Kan.  App.  703. 

(356) 


Art.  3)  APPEARANCE  §  507 

rer,9*  the  giving  of  a  redelivery  bond  in  replevin,95  the  giving  of  a 
bond  to  discharge  garnishment,  conditioned  to  pay  any  judgment 
against  the  defendant,96  the  giving  of  a  bond  for  appeal  to  the  dis- 
trict court  in  probate  proceedings,97  a  request  in  court  for  an  ex- 
tension of  time  or  leave  to  plead  or  answer,98  and  an  appearance  to 
contest  the  right  to  the  custody  of  children  .in  a  divorce  suit,99 
or  to  contest  the  right  to  amend  the  affidavit  in  attachment,1  or 
to  apply  for  a  change  of  venue.2  It  is  also  entered  where  the  de- 
fendant files  a  motion  to  make  the  petition  more  definite  and  cer- 
tain, joins  in  a  stipulation  that  plaintiff  may  have  time  to  amend, 
files  a  general  denial,  or  files  an  answer  to  his  codefendant's  cross- 
petition.3 

A  general  appearance  is  not  entered  by  the  mere  taking  of  depo- 
sitions not  taken  before  the  court.4 

An  unauthorized  appearance  for  a  nonresident  does  not  give  ju- 
risdiction over  him.5  But  where  the  attorney  for  the  defendant  in 
an  action  to  quiet  title  enters  an  appearance  for  her  without  her 

94  Kauter  v.  Entz,  61  P.  818,  8  Kan.  App.  788. 

National  Surety  Co.  v.  Oklahoma  Presbyterian  College  for  Girls,  38  Okl. 
429,  132  P.  652;  Comp.  Laws  1909,  §  5632;  Fitzgerald  v.  Foster,  69  P.  878, 
11  Okl.  558;  Whitaker  v.  Hughes,  78  P.  383,  14  Okl.  510. 

95  Fowler  v.  Fowler,  15  Okl.  529,  82  P.  923. 

Ferguson  v.  McKee,  125  P.  458,  33  Okl.  332;  McCord-Collins  Mercantile 
Co.  v.  Dodson,  121  P.  1085,  32  Okl.  561 ;  T.  D.  Turner  &  Co.  v.  Same,  121  P. 
1087,  32  Okl.  566. 

»•«  Bishop-Babcock-Becker  Co.  v.  Hyde,  61  Okl.  250,  161  P.  172. 

97  Where  replevin  is  brought  in  the  probate  court,  and  defendant  appeals 
to  the  district  court  on  questions  of  law  and  fact,  the  district  court  then 
tries  the  case  de  novo  and  not  as  a  court  of  review,  and  the  giving  of  an 
appeal  bond  is  an  appearance  waiving1  any  question  as  to  jurisdiction  over 
the  person  of  defendant.    Fowler  v.  Fowler,  82  P.  923,  15  Okl.  529 ;    Deming 
Inv.  Co.  v.  Love,  31  Okl.  146,  120  P.  635. 

98  Anderson  v.  Burchett,  30  P.  174,  48  Kan.  781;   Lookabaugh  v.  Epperson, 
114  P.  738,  28  Okl.  472. 

99  Abercrombie  v.  Abercrombie,  67  P.  539,  64  Kan.  29. 
1Burnham  v.  Lewis,  70  P.  337,  65  Kan.  481. 

2  A  defendant  who  appears  in  court  and  applies  for  a  change  of  venue,  and 
thereafter  answers  to  the  merits  of  the  action,  and  goes  to  trial  without  ob- 
jection,  cannot  question   the  jurisdiction   as  to  his  person,   even   though  a 
defense  on  that  ground  be  included  in  his  answer.     Linney  v.  Thompson,  45 
P.  456.  3  Kan.  App.  718- 

3  Wetmore  State  Bank  v.  Courter,  155  ,P.  27,  97  Kan.  178. 

4  Bentz  v.  Eubanks,  4  P.  269,  32  Kan.  321 ;    Bentz  v.  Eubanks,  4  P.  269,  32 
Kan.  321. 

5  Mortgage  Trust  Co.  of  Pennsylvania  v.  Cowles,  45  P.  605,  3  Kan.  App.  660. 

(357) 


§    507  COMMENCEMENT  OF  ACTION  (Ch.  9 

consent  and  judgment  is  rendered  in  her  favor,  either  she  or  her 
grantee  may  ratify  such  appearance  and  become  entitled  to  the 
benefits  of  the  judgment  in  the  absence  of  any  previous  repudiation 
by  her  of  the  unauthorized  appearance.6 

Where  an  attorney  is  directed  by  his  client  to  enter  a  special  ap- 
pearance, yet  in  doing  so  he  honestly  pleads  matter  operating  as  a 
general  appearance,  the  client  is  bound  thereby.7 

An  agreement  to  appear  in  an  action  and  waive  service  of  sum- 
mons does  not  confer  jurisdiction,  as  by  voluntary  appearance,  even 
where  it  was  filed  at  the  same  time  as  the  petition.8 

Defendants  appearing  by  counsel,  without  specially  limiting  their 
appearance,  to  resist  the  granting  of  a  temporary  injunction,  are 
in  court  for  all  purposes  without  the  issuance  of  a  summons.0 

If  a  party  to  an  action  over  which  the  court  has  obtained  no  ju- 
risdiction presents  himself  and  becomes  a  party  to  the  proceeding, 
he  thereby  waives  the  jurisdiction,  but  such  appearance  must  be 
in  some  matter  before  the  court.10 

Where  a  default  judgment  is  rendered  without  summons  or  upon 

6  Plummer  v.  Ash,  133  P.  157,  90  Kan.  40. 

7  McNeal  v.  Gossard,  74  P.  628,  68  Kan.  113. 

8  Prescott  v.  Farmers'  Nat.  Bank,  53  P.  769,  9  Kan.  App.  886. 

An  agreement  signed  by  defendants  16  days  prior  to  the  filing  of  the  pe- 
tition, "We  hereby  consent  that  this  -tase  may  be  tried  in  N.  county  district 
court,  and  accordingly  enter  our  appearance  in  this  case  in  said  N.  county 
district  court,  and  waive  the  issuance  of  summons,"  and  filed  with  the  pe- 
tition, did  not  constitute  an  appearance,  within  the  statute.  Bradley,  Wheel- 
er &  Co.  v.  Harwi,  42  P.  411,  2  Kan.  App.  272. 

9  Arment  v.  Dodge  City,  154  P.  219,  97  Kan.  94. 

10  Hentig  v.  Redden,  16  P.  820,  38  Kan.  496. 

After  the  issues  were  joined  in  an  action  on  a  foreign  judgment,  defend- 
ant died,  and  plaintiff  presented  his  claim  to  his  executors  who  rejected  the 
same.  The  court  allowed  plaintiff  to  amend  his  petition,  and  gave  defend- 
ants 30  days  in  which  to  answer.  The  petition  set  up  the  death  of  the  de- 
fendant, the  appointment  of  the  executors,  and  the  presentation  and  rejec- 
tion of  the  claim.  The  executors  filed  a  general  appearance.  Held,  that  such 
appearance  was  a  submission  to  jurisdiction  and  waived  a  formal  revivor. 
Brown  v.  Hillman,  116  P.  775,  29  Okl.  205. 

Where  defendant  enters  a  general  appearance  in  the  case  without  first  at- 
tacking the  service  by  publication,  on  the  ground  of  the  defect  in  the  affi- 
davit for  publication,  he  waives  such  defect.  Raymond  v.  Nix,  49  P.  1110,  5 
Okl.  656. 

The  voluntary  general  appearance  of  the  defendant  is  equivalent  to  the 
personal  service  of  summons,  and  where  it  has  been  made  by  a  nonresident 
defendant  it  is  error  to  enter  an  ex  parte  order  permitting  him  to  withdraw 

(358) 


Art.  3)  APPEARANCE  §§  507-508 

fatally  defective  process,  defendant,  during  that  term,  may  appear 
by  motion  and  have  the  judgment  vacated  on  that  ground,  and  that 
the  motion  contains  matters  constituting  a  general  appearance  does 
not  render  order  vacating  the  judgment  erroneous.11 

Filing  a  suit  constitutes  submission  to  the  jurisdiction  for  all 
purposes  within  the  petition.12 

§  508.     Special  appearance 

Any  plea  or  proceeding  which  raises  jurisdictional  questions  only 
is  a  special  appearance,18  and  will  not  give  the  court  jurisdiction 
over  defendant's  person.14 

An  appearance  to  be  special  must  be  shown  to  be  such  by  proper 
designation.15 

Where  a  court  has  no  jurisdiction  and  the  defendant  appears  spe- 
cially to  call  attention  to  such  irregularity  and  the  court  overrules 
his  motion  to  such  jurisdiction,  he  may  save  his  exception,  file  his 
answer,  and  proceed  to  trial  without  waiving  such  error;  and  he 

his  appearance.  Insurance  Trust  &  Agency  v.  Failing,  71  P.  826,  66  Kan. 
336;  Same  v.  Green,  Id. 

A  voluntary  appearance,  so  as  to  be  equivalent  to  a  service  of  summons,  is 
made  by  defendant  signing  a  paper,  entitled  in  the  cause,  waiving  service  of. 
summons  and  entering  an  appearance  in  the  action,  whether  the  same  is  tiled 
with  the  petition  or  afterwards,  or  in  term  time  or  vacation.  Judgment  53 
P.  769,  9  Kan.  App.  886,  reversed.  Salina  Nat.  Bank  v.  Prescott,  57  P.  121, 
60  Kan.  490. 

«  Fried  v.  First  Nat.  Bank  (Okl.)  176  P.  909. 

12  Humphreys  v.  Smith  (Okl.)  197  P.  155. 

13  City  Nrit.  Bank  v.  Sparks,  50  Okl.  648,  151  P.  225. 

A  motion  to  set  aside  an  order  confiscating  property  held  not  a  "general 
appearance."  Bishop  v.  Fischer,  145  P.  890,  94  Kan.  105,  Ann.  Cas.  1917B,  450. 

A  defendant  who  appears  specially,  and  moves  to  dismiss  an  action  against 
him  on  jurisdictional  grounds,  does  not  thereby  enter  a  general  appearance  in 
the  case.  Thompson  v.  Greer,  64  P.  48,  62  Kan.  522. 

Where  defendants  merely  move  to  dismiss  the  action  on  the  ground  that 
the  court  has  no  jurisdiction  of  them,  because  there  has  been  no  service  of 
summons,  and  limit  their  appearance  to  the  purpose  of  the  motion,  the  ap- 
pearance is  special,  and  gives  the  court  no  jurisdiction  of  the  persons  of 
defendants.  Anglo-American  Packing  &  Provision  Co.  v.  Turner  Casing  Co., 
8  P.  403,  34  Kan.  340. 

By  moving  to  set  aside  a  judgment  on  the  ground  that  no  proper  service 
was  had  on  defendant,  the  latter  makes  a  special  appearance  only.  Green  v. 
Green,  22  P.  730,  42  Kan.  654,  16  Am.  St.  Rep.  510. 

For  form,  see  Motion  to  Quash,  ante,  §  502. 

14  City  Nat.  Bank  v.  Sparks,  50  Okl.  648,  151  P.  225. 
Green  v.  Green,  22  P.  730,  42  Kan.  654,  16  Am.  St.  Rep.  510. 
16  Drennan  v.  Warbul-ton,  122  P.  179,  33  Okl.  561. 

(359) 


§§    508-509  COMMENCEMENT  OF  ACTION  (Ch.  9 

may  take  advantage  of  such  error  on  appeal ; 1S  but,  where  he  files 
a  cross-petition  and  asks  for  affirmative  relief,  he  submits  his  person 
to  the  jurisdiction  of  the  court  for  all  purposes  of  the  entire  ac- 
tion.17 

When  a  defendant  files  a  plea  in  the  nature  of  a  plea  in  abate- 
ment, which  questions  the  jurisdiction  of  the  court  over  the  per- 
son of  the  defendant,  and  such  defendant,  without  requesting  or  ob- 
taining a  ruling  upon  such  plea,  voluntarily  obtains  leave  of  court, 
and  files  his  answer  to  the  merits  of  the  case,  the  filing  of  such  an- 
swer waives  the  special  plea  to  jurisdiction,  and  amounts  to  a  gen- 
eral appearance  in  the  case  for  all  purposes.18 

A  judgment  having  been  entered  against  one  of  several  defend- 
ants, who  had  not  been  served,  and  had  not  entered  an  appearance, 
a  motion  by  him  to  modify  and  vacate  the  judgment  as  against  him 
will  not  render  the  judgment  valid  as  to  him,  though,  in  addition 
to  stating  that  the  court  had  acquired  no  jurisdiction  of  his  person, 
the  motion  recites  that  the  judgment  was  entered  as  it  was  by  mis- 
take and  inadvertence,  and  that  the  judgment  actually  rendered  by 
the  court  did  not  affect  the  party  moving  for  a  modification  of  the 
entry.19 

§  509.     Effect 

A  general  appearance  by  giving  a  bond  to  discharge  a  garnish- 
ment converts  the  action  from  one  in  rem  to  one  in  personam.20 

In  a  creditor's  action  against  the  state  bank  examiner,  an  appear- 


18  Chicago  Bldg.  &  Mfg.  Co.  v.  Pewthers,  63  P.  964,  10  Okl.  724;  Same  v. 
Kirby,  63  P.  966,  10  Okl.  730 ;  Jones  v.  Chicago  Bldg.  &  Mfg.  Co.,  64  P.  7,  10 
Old.  628;  Mortgage  Trust  Co.  of  Pennsylvania  v.  Norris,  54  P.  283,  8  Kan. 
App.  699  r  St.  Louis  &  S.  F.  R.  Co.  v.  Clark,  87  P.  430,  17  Okl.  562. 

17  F.  C.  Austin  Mfg.  Co.  v.  Hunter,  86  P.  293,  16  Okl.  86;    Thompson  v. 
Greer,  64  P.  48,  62  Kan.  522. 

Where  the  attorney  for  a  railroad  company  takes  part  in  the  trial  of  a 
case  in  which  it  is  defended  under  protest,  after  his  motion  to  quash  the 
summons  has  been  overruled,  he  having  made  a  special  appearance  to  test 
the  validity  of  the  service,  there  is  no  such  appearance  as  will  give  th(.  court 
jurisdiction  of  the  person  of  defendant  if  the  service  is  in  fact  invalid.  Dick- 
erson  v.  Burlington  &  M.  R.  R.  Co.,  23  P.  936,  43  Kan.  702. 

18  Winfield  Nat.  Bank  v.  McWilliams,  60  P.  229,  9  Okl.  493. 

19  First  Nat.  Bank  of  Newton  v.  Wm.  B.  Grimes  Dry-Goods  Co.,  26  P.  56, 
45  Kan.  510. 

20  Bishop-Babcock-Becker  Co.  v.  Hyde,  61  Okl.  250,  161  P.  172. 

(360) 


Art.  3)  APPEARANCE  §§  509-511 

ance  by  the  commissioner  to  defend  the  suit  did  not  make  the  state 
a  party  consenting  to  the  action.21 

The  application  of  the  trustees  under  the  will  of  a  deceased  per- 
son to  be  let  in  to  defend  will  not  render  effective  for  any  purpose  a 
void  judgment  against  such  person  rendered  after  his  death.22 

§  510.    Waiver  of  process 

A  general  appearance  waives  all  defects  in  the  summons  and 
confers  jurisdiction  for  all  purposes.23 

No  summons  need  be  issued  where  a  voluntary  general  appear- 
ance is  entered.24  Hence,  where  a  motion  to  quash  service  of  sum- 
mons is  overruled  and  not  excepted  to,  and  upon  application  mov- 
ant  files  his  answer,  service  of  summons  is  waived  and  movant  is 
properly  in  court.25  Likewise,  where  no  summons  was  issued  by 
defendant  on  the  filing  of  its  motion  to  set  aside  the  judgment, 
plaintiff's  appearance  at  the  hearing  and  his  participation  therein 
operated  as  a  waiver  of  the  issuance  and  service  of  summons.26 

§  511.     Objections — Preservation  and  waiver 

Where  a  defendant  appears  specially  and  objects  to  the  jurisdic- 
tion, he  may,  when  his  motion  is  denied,  file  his  answer  without 
making  a  general  appearance,  unless  in  his  answer  he  asks  for  af- 
firmative relief,  in  which  case  his  appearance  is  general.27 

21  Lankford  v.  Schroeder,  47  Okl.  279,  147  P.  1049. 

22  Morris  v.  Winderlin,  142  P.  944,  92  Kan.  935. 

23  Hanson  v.  Hanson,  122  P.  100,  86  Kan.  622;    Ziska  v.  Avey,  122  P.  722, 
36  Okl.  405 ;    Turk  v.  Mayberry,  121  P.  665,  32  Okl.  66. 

Where  after  judgment  against  a  grantee  on  the  warranty,  and  over  against 
her  grantor,  the  grantor  moved  for  a  new  trial,  he  thereby  entered  a  general 
appearance  and  validated  the  judgment  regardfess  of  any  defect  in  the  proof 
of  service  of  the  notice  to  warrantor  prescribed  by  Comp.  Laws  1909.  §  1205, 
and  in  the  absence  of  service  of  summons  on  him.  Clarkson  v.  Washington, 
38  Okl.  4,  131  P.  935. 

Where  a  defendant  appears  after  judgment  and  moves  to  set  same  aside  for 
want  of  jurisdiction,  and  because  the  petition  failed  to  state  a  cause  of 
action,  and  the  action  was  not  a  proper  one  for  service  by  publication,  it  is 
a  waiver  of  his  right  to  question  the  court's  jurisdiction  to  render  the  judg- 
ment. Willett  v.  Blake,  39  Okl.  261,  134  P.  1109. 

Guardian  cited  to  show  cause  why  he  should  not  be  discharged  by  entering 
general  appearance  waives  all  defects  in  citation.  In  re  Byrd,  122  P.  516,  31 
Okl.  549. 

24  Wetmore  State  Bank  v.  Courter,  155  P.  27,  97  Kan.  178. 

25  Tracy  v.  State,  60  Okl.  109,  159  P.  496. 

26  Continental  Gin  Co.  v.  Arnold  (Okl.)  167  P.  613,  L.  R.  A.  1918B,  511. 

27  Shufeldt  v.  Jefcoat,  50  Okl.  790,  151  P.  595;   Vann  v.  Missouri,  K.  &  T.. 

(361) 


§    511  COMMENCEMENT   OF  ACTION  (Ch.  9 

Where  defendant  appears  specially  to  challenge  the  court's  juris- 
diction over  the  person  and  saves  exceptions  to  an  adverse  ruling, 
he  may  file  his  answer  and  proceed  to  trial  without*waiving  such 
error.28 

Where  an  objection  to  service  by  publication  in  a  case  begun  by 
garnishment  is  properly  overruled,  jurisdiction  to  render  a  personal 
judgment  against  the  defendant,  after  trial  on  the  merits,  is  confer- 
red by  his  answer,  notwithstanding  right  to  review  a  ruling  on  ob- 
jection was  preserved.29 

Any  plea  or  proceeding  which  raises  nonjurisdictional  questions 
involving  the  merits  waives  all  questions  as  to  regularity  of  the 
service,30  but  does  not  waive  any  irregularities  in  the  proceedings 
and  judgment  which  may  deprive  them  of  a  substantial  right.31 

In  action  by  a  Seminole  freedman  to  quiet  title  to  her  allotted 
lands,  where,  on  suggestion  of  her  death,  the  court,  without  notice 
to  defendants,  revived  the  action  in  the  name  of  her  father,  enrolled 
as  a  Creek,  who  filed  supplemental  pleadings,  the  irregularity  in 
making  the  order  of  revival  was  waived  by  defendants'  general  ap- 
pearance.32 

Ry.  Co.  (Kan.)  176  P.  652;  Bes  Line  Const.  Co.  v.  Schmidt,  85  P.  711,  16 
Okl.  429;  Bes  Line  Const.  Co.  v.  Taylor,  85  P.  713,  16  Okl.  481. 

Where  defendant,  after  the  overruling  of  his  objections  to  jurisdiction, 
voluntarily  demands  affirmative  relief,  he  waives  his  objection.  Win.  Camer- 
on &  Co.  v.  Consolidated  School  Dist.  No.  1  of  Kiowa  County,  44  Okl.  67,  143 
P.  182. 

Filing  of  answer  claiming  damages  after  overruling  of  special  appearance 
held  a  general  appearance  waiving  any  error  in  overruling  a  special  appear- 
ance. Hamra  v.  Fitzpatrick,  55  Okl.  780,  154  P.  665. 

Where  a  nonresident  defendant  in  attachment,  after  denial  of  his  motion 
to  discharge  the  attachment,  answered  and  filed  cross-action,  it  thereby  enter- 
ed a  general  appearance  and  waived  its  objection  to  the  court's  jurisdiction. 
Southwestern  Broom  &  Warehouse  Co.  v.  City  Nat.  Bank,  52  Okl.  422,  153  P. 
204. 

Where  defendant,  after  denial  of  motion  to  quash  service,  answered  and  ask- 
ed for  affirmative  relief,  he  waived  any  defect  in  the  service  of  publication. 
Oates  v.  Freeman,  57  Okl.  449,  157  P.  74 ;  Hill  v.  Persinger,  57  Okl.  663,  157 
P.  744. 

28  St.  Louis  &  S.  F.  R.  Co.  v.  Reed,  59  Okl.  95,  158  P.  399. 

29  Dye  v.  Denver  &  R.  G.  R.  Co.,  101  Kan.  666,  168  P.  1087. 

80  City  Nat.  Bank  v.  Sparks,  50  Okl.  648,  151  P.  225 ;  Valley  Abstract  Co. 
v.  Page,  141  P.  416,  42  Okl.  365. 

31  Griffin  v.  Jones,  45  Okl.  305,  147  P-  1024. 

32  Dickinson  v.  Abb    (Okl.)   176  P.  523. 

(362) 


Ch.  10)  CONTINUANCE  AND  DISMISSAL  §   512 


CHAPTER  X 


CONTINUANCE  AND  DISMISSAL 

Sections 

512-526.    Article     I. — Continuance. 
527-539.    Article    II.— Dismissal. 


ARTICLE  I 

«» 

CONTINUANCE 

Sections 

512.  When  granted — Discretion. 

513.  Stipulation. 

514.  Grounds — Illness  of  party. 

515.  Accident  or  mistake. 

516.  Amendment  of  pleading. 

517.  Absence  of  counsel. 

518.  Depositions. 

519.  Absence  of  witness. 

520.  Surprise  at  trial. 

521.  Admissions  to  prevent  continuance. 

522.  Offer  to  confess  judgment. 

523.  Application  and  affidavit — Forms. 

524.  Time  of  making. 

525.  Further  continuances. 

526.  Objections — Waiver. 

§  512.     When  granted — Discretion 

"The  court  may,  for  good  cause  shown,  continue  an  action  at  any 
stage  of  the  proceedings -upon  such  terms  as  may  be  just;  provided, 
that,  if  a  party,  or  his  attorney  of  record,  is  serving  as  a  member  of 
the  Legislature,  or  of  the  Senate,  sitting  as  a  court  of  impeachment, 
or  within  ten  days  after  an  adjournment  of  a  session  of  the  Legis- 
lature, such  fact  shall  constitute  cause  for  continuance,  the  refusal 
to  grant  which  shall  constitute  error,  and  entitle  such  party  to  a 
new  trial  as  a  matter  of  right.  When  a  continuance  is  granted  on 
account  of  the  absence  of  evidence  it  shall  be  at  the  cost  of  the  par- 
ty making  the  application  unless  the  court  otherwise  order."  x 

t 

i  Sess.  Laws  1915,  p.  556,  §  1,  amending  Rev.  Laws  1910,  §  5044,  effective 
March  22,  1915 ;  McMahan  v.  Norick,  69  P.  1047,  12  Okl.  125. 

For  additional  grounds  for  continuance,  where  a  litigant  or  his  attorney  is 

(363) 


§§    512-513  CONTINUANCE   AND  DISMISSAL  (Ch.  10 

The  granting  or  refusal  of  a  motion  for  a  continuance  is  ad- 
dressed to  the  trial  judge's  sound  discretion,2  and  a  continuance 
should  be  granted  only  when  clearly  in  furtherance  of  justice.3 

Where  facts  and  circumstances  tend  to  cast  doubt  as  to  the  truth 
of  matters  averred  in  affidavits  supporting  a  motion  for  a  continu- 
ance, or  to  raise  a  judicial  suspicion  that  the  motion  was  made  for 
mere  delay  and  to  hinder  the  administration  of  justice,  there  is  no 
abuse  of  discretion  in  denying  the  continuance.4 

The  act  of  a  trial  judge  in  stating  to  counsel  off  the  bench  and  be- 
fore a  motion  for  a  continuance  has  been  presented  that  the  motion 
would  be  overruled,  while  not  commendable,  is  not  sufficient  to 
show  an  abuse  of  discretion  in  overruling  the  motion.6 

§  513.     Stipulation 

Plaintiff's  motion  for  a  continuance  founded  upon  an  alleged  oral 
agreement  of  counsel  made  out  of  court,  but  denied  by  defendant's 
counsel,  is  properly  refused,  the  court  not  being  bound  by  such 
agreements,  especially  where  counsel  differ  as  to  what  the  agree- 
ment actually  was.6  Where  there  was  an  agreement  between  coun- 
sel that  the  testimony  of  certain  witnesses  in  another  case  should 
be  transcribed  and  used  as  a  deposition  in  the  present  case,  and  the 
party  in  whose  favor  the  testimony  was  given  relied  on  the  agree- 
ment and  did  not  procure  the  attendance  of  the  witnesses,  such  tes- 
timony should  have  been  admitted,  though  objected  to,  or  a  contin- 
uance should  have  been  granted.7 


a  member  of  the  Legislature,  see  Sess.  Laws  1919,  p.  374,  amending  Sess. 
Laws  1915,  c.  236,  §  1. 

2  Scott  v.  Iman  (Okl.)  176  P.  81 ;  Columbian  Nat.  Life  Ins.  Co.  v.  Wirthle 
(Okl.)  176  P.  406 ;  Priest  v.  Quinton  (Okl.)  171  P.  1113 ;  Walton  v.  Kennamer, 
136  P.  584,  39  Okl.  629 ;  Fire  Ass'n  of  Philadelphia  v.  Farmers'  Gin  Co.,  39 
Okl.  162,  134  P.  443. 

s  Jennings  Co.  v.  Dyer,  139  P.  250,  41  Okl.  468. 

*  Economy  Hog  &  Cattle  Powder  Co.  v.  Bilby,  104  Kan.  769,  180  P.  735. 

It  is  not  error  to  refuse  to  continue  a  case  on  defendant's  request,  in  the 
absence  of  any  showing  that  he  could  not  be  ready  for  trial.  Clark  v.  Elli- 
thorpe,  51  P.  940,  7  Kan.  App.  337. 

s  Crutchfield  v.  Martin,  117  P.  194,  27  Okl.  764. 

e  Clark  v.  Dekker,  23  P.  956,  43  Kan.  692. 

7  Cherokee  &  P.  Coal  &  Mining  Co.  v.  Wilson,  28  P.  178,  47  Kan.  460. 

(364) 


Art.  1)  CONTINUANCE  §§  513-514 

STIPULATION  FOR  CONTINUANCE 

(Caption.) 
It  is  hereby  stipulated  and  agreed  by  and  between  the  parties  to 

this  action  that  this  cause  may  be  continued  (at  the  cost  of ),  to 

the term  of  this  court,  subject  to  the  approval  of  the  court. 

G.  H.,  Attorney  for  Plaintiff. 
X.  Y.,  Attorney  for  Defendant. 

§  514.     Grounds — Illness  of  party 

"A  motion  for  a  continuance,  on  account  of  the  absence  of  evi- 
dence, can  be  made  only  upon  affidavit,  showing  the  materiality  of 
the  evidence  expected  to  be  obtained,  and  that  due  diligence  has 
been  used  to  obtain  it,  and  where  the  evidence  may  be ;  and  if  it  is 
for  an  absent  witness,  the  affidavit  must  show  where  the  witness  re- 
sides, if  his  residence  is  known  to  the  party,  and  the  probability  of 
procuring  his  testimony  within  a  reasonable  time,  and  what  facts 
he  believes  the  witness  will  prove,  and  that  he  believes  them  to  be 
true.  If  thereupon,  the  adverse  party  will  consent  that  on  the  trial 
the  facts  alleged  in  the  affidavit  shall  be  read  and  treated  as  the  dep- 
osition of  the  absent  witness,  or  that  the  facts  in  relation  to  other 
evidence  shall  be  taken  as  proved  to  the  extent  alleged  in  the  affi- 
davit, no  continuance  shall  be  granted  on  the  ground  of  the  absence 
of  such  evidence."  8 

It  was  not  error  to  refuse  a  continuance  on  the  ground  of  defend- 
ant's sickness,  which  had  already  lasted  a  year,  without  a  showing 
of  probability  that  he  could  attend  court  within  a  reasonable  time ; 9 
nor  was  it  error  to  refuse  a  continuance  asked  by  one  of  two  defend- 
ants sued  as  co-partners,  where  the  only  showing  was  that  defend- 
ant, who  was  a  nonresident  of  the  state,  desired  to  attend  the  trial, 
but  was  unable  to  do  so  on  account  of  sickness.10 

Where  an  application  for  a  continuance  on  the  ground  that  the  ap- 
plicant is  prevented  from  attending  on  account  of  his  sickness  is 
supported  only  by  the  certificate  of  a  physician,  and  no  affidavit  is 
filed  by  the  physician,  or  any  other  person  having  personal  knowl- 

s  Rev.  Laws  1910,  §  5045 ;   Martin  v.  Hubbard,  121  P.  620,  32  Okl.  2. 
That  the  president  of  a  corporation  plaintiff  was  sick  was  not  ground  for 
a  continuance.    Jennings  Co.  v.  Dyer,  139  P.  250,  41  Okl.  468. 
»  Cohn  v.  Clark,  48  Okl.  500,  150  P.  467,  L.  R.  A.  1916B,  686. 
10  Paulucci  v.  Verity,  40  P.  927,  1  Kan.  App.  121. 

(365) 


§§    514-516  CONTINUANCE  AND   DISMISSAL  (Ch.  10 

edge  that  the  party  is  unable  to  attend  court,  the  ruling  of  the  court 
refusing  a  continuance  will  not  be  reversed ; 1X  but  where  an  appli- 
cation for  a  continuance  is  made  on  the  ground  of  an  absence  of  a 
party  to  the  action,  and  it  is  shown  by  the  affidavit  of  a  physician 
that  she  is  unable  to  attend  on  account  of  serious  sickness,  and  the 
.attorney  for  the  party  makes  an  affidavit  showing  that  she  is  a  ma- 
terial witness,  and  that  her  presence  at  the  trial  is  necessary,  it  was 
an  abuse  of  discretion  to  deny  the  application  for  a  continuance. l2 

§  515.     Accident  or  mistake 

The  denial  of  a  continuance  sought  because  of  the  absence  of 
plaintiff,  who  was  an  important  witness,  was  an  abuse  of  discretion, 
where  his  absence  was  due  to  being  informed  by  his  counsel  that 
the"  case  would  be  dismissed  on  his  motion,  which  motion  was  de- 
nied.13 

A  motion  by  plaintiff  for  a  continuance  when  the  case  was  called 
for  trial  in  her  absence  should  have  been  granted  on  a  showing  that 
plaintiff  intended  to  be  present,  and  that  a  failure  to  attend  was  due 
to  the  miscarriage  of  a  letter  written  by  her  attorney.1* 

§  516.     Amendment  of  pleading 

"When  either  party  shall  amend  any  pleading  or  proceeding,  and 
the  court  shall  be  satisfied,  by  affidavit  or  otherwise",  that  the  ad- 
verse party  could  not  be  ready  for  trial,  in  consequence  thereof,  a 
continuance  may  be  granted  to  some  day  in  term,  or  to  another 
term  of  the  court."  15 

11  Harlow  v.  Warren,  17  P.  159,  38  Kan.  480. 

A  postponement  of  a  trial  on  account  of  the  absence  of  defendant,  who,  it 
was  alleged,  was  unable  to  attend  by  reason  of  personal  injuries,  was  asked 
for  by  his  counsel.  In  the  affidavit  for  continuance  the  inability  of  defend- 
ant to  attend  was  shown,  and  it  was  stated  that  no  defense  could  be  made 
without  his  personal  attendance.  There  had  been  a  previous  trial,  and  it  was 
not  shown  that  defendant  had  a  bona  fide  defense,  or  that  he  was  a  witness 
to  any  material  fact,  or  possessed  of  any  knowledge  not  shared  by  his  coun- 
sel. Held,  that  the  overruling  of  the  motion  was  not  such  an  abuse  of  discre- 
tion as  to  justify  a  reversal.  Beard  v.  Mac-key,  32  P.  921,  51  Kan.  131. 

Evidence  held  to  justify  court's  decision  that  the  defendant's  sickness, 
made  the  ground  of  an  application  for  a  continuance,  was  only  feigned,  and 
that  the  application  was  merely  to  hinder  the  administration  of  justice.  Ladd 
v.  Flato,  102  Kan.  312,  169  P.  958. 

12  McMahan  v.  Norick,  69  P.  1047,  12  Okl.  125. 
is  Cox  v.  Kirkwood,  139  P.  980,  41  Okl.  704. 
n  Helm  v.  Veils,  49  P.  662,  58  Kan.  816. 

is  Rev.  Laws  1910,  §  4793. 

(366) 


Art.  1)  CONTINUANCE  §  516 

Where  the  issues  are  closed  for  ten  days  before  the  case  is  set  for 
trial  by  the  filing  of  a  pleading  or  by  the  lapse  of  time  by  failure  to 
plead,  the  statute  ceases  to  operate,  and  the  subsequent  filing  of 
amended  pleadings  not  changing  the  issues  or  prejudicing  the  com- 
plaining party  will  not  necessarily  work  a  delay  of  the  trial.16 

A  cause  may  not  be  delayed  by  reason  of  an  amendment  except 
on  good  cause  shown  by  the  affidavit  of  the  party  asking  the  delay 
showing  distinctly  in  what  respect  he  has  been  prejudiced  by  the 
amendment.17 

A  continuance  on  account  of  a  formal  amendment  of  the  petition 
is  not  a  matter  of  right.18 

The  denial  of  a  continuance  sought  because  of  an  amendment  to 
the  petition  is  not  error,  in  the  absence  of  a  showing  of  surprise,19 
or  the  need  of  unanticipated  testimony  to  meet  a  new  question.20 

Surprise  is  not  sufficient  ground  for  a  continuance,  unless  the  sur- 
prise is  such  as  cannot  be  obviated  by  the  exercise  of  ordinary  care 
and  due  diligence  on  the  part  of  the  party  asking  for  the  continu- 
ance.21 

Where  an  amended  petition  was  filed  by  leave  of  court,  setting  up 
additional  claims  for  relief  against  defendants  who  had  not  answer- 
ed the  original  petition,  it  was  error  to  refuse  to  continue  as  to  said 
defendants  for  additional  service,  and  to  dismiss  said  action  as  to 
them,  since  the  plaintiff  was  entitled  to  additional  time  in  which  to 
notify  such  defendants  of  the  additional  allegations  against  them.22 

is  Ham  v.  Missouri  State  Life  Ins.  Co.  (Okl.)  173  P.  214;  Rev.  Laws,  1910, 
§  5043. 

i?  Diebold  Safe  &  Lock  Co.  v.  Holt,  46  P.  512,  4  Okl.  479. 

is  Union  Pac.  Ry.  Co.  v.  Motzner,  55  P.  670,  8  Kan.  App.  431;  State  Bank 
of  Downs  v.  Abbott,  104  Kan.  344,  179  P.  326 ;  Thompson  v.  Aultman  &  Tay- 
lor Mach.  Co.,  146  P.  1188,  94  Kan.  453. 

i»  Lewis  v.  Bandy,  45  Okl.  45,  144  P.  624 ;  Parsons  Water  Co.  v.  Hill,  26  P. 
412,  46  Kan.  145. 

20  Chandler  v.  Parker,  70  P.  368,  65  Kan.  860. 

Where  the  plaintiff  sues  on  various  items  of  account  and  damage,  and  the 
defendant  answers,  admitting  some  of  the  claims,  and  denying  others,  and 
setting  up  various  items  of  counterclaim,  to  which  plaintiff  replies  with  a  gen- 
eral denial,  and  the  parties  go  to  trial,  and,  after  the  plaintiff  has  rested,  the 
defendant  is  allowed  to  file  an  amendment  setting  up  an  entirely  new  item  of 
counterclaim,  the  plaintiff  should  be  allowed  time  to  plead  to  said  amend- 
ment, or  to  procure  evidence  thereon.  Vale  v.  Trader,  48  P.  458,  5  Kan.  App. 
307. 

21  Missouri,  K.  &  T.  Ry.  Co.  v.  Horton,  119  P.  233,  28  Okl.  815. 

22  Woodruff  v.  Albright,  62  P.  250,  10  Kan.  App.  113. 

(367) 


§§    517-519  CONTINUANCE   AND   DISMISSAL  (Ch.  10 

§  517.    Absence  of  counsel 

Absence  of  counsel  is  not  a  statutory  ground  for  a  continuance, 
and  the  grant  or  refusal  of  a  continuance  therefor  is  within  the  dis- 
cretion of  the  court.23 

§  518.     Depositions 

On  objection  to  depositions  because  not  filed  one  day  before  trial, 
the  court  on  its  own  motion  may  continue  the  cause.2* 

Where  depositions  are  suppressed  because  when  received 
through  the  mail,  the  envelope  inclosing  them  was  found  torn  open, 
it  is  error  to  refuse  a  continuance ;  it  appearing  that  the  defective 
condition  in  which  the  depositions  were  received  was  not  caused  by 
any  neglect  of^the  party  taking  the  same.25 

§  519.     Absence  of  witness 

The  continuance  of  a  case  for  the  absence  of  a  witness  is  in  the 
discretion  of  the  trial  court.26 

After  a  case  has  been  called  for  trial,  and  both  parties  have  an- 
nounced themselves  ready,  and  evidence  has  been  introduced,  an 
application  for  a  continuance  to  send  to  another  county  to  procure 
a  witness  is  properly  denied.27 

It  is  proper  to  overrule  a,ri  application  for  a  continuance  which 


23  Pool  v.  Riegal,  46  Okl.  5,  147  P.  1193.     Denial  of  a  continuance,  sought 
for  absence  of  counsel,  held  not  error,  where  the  motion  was  unverified,  and 
did  not  show  that  the  absent  counsel  was  the  sole  counsel,  or  the  facts  as  to 
his  absence,  or  effort  made  to  procure  other  counsel.    Id. 

Defendants'  application  for  a  continuance  on  the  ground  that  one  of  their 
attorneys  was  a  member  of  the  Legislature  and  could  not  be  present  at  the 
trial  because  the  Legislature  was  in  session  was  properly  denied.  Berry  v. 
Dewey,  172  P.  27,  102  Kan.  593. 

Denial  of  motion  for  continuance,  on  ground  of  absence  of  counsel  by  rea- 
son of  illness,  held  not  an  abuse  of  the  trial  court's  discretion,  where  party 
was  represented  by  two  able  lawyers  present.  Snyder  Co-op.  Ass'n  v.  Brown 
(Okl.)  172  P.  789. 

24  Kepley  v.  Dingman,  130  P.  284,  36  Okl.  771. 

25  Order  of  United  Commercial  Travelers  of  America  v.  Barnes,  82  P.  1099, 
72  Kan.  293,  7  Ann.  Cas.  809,  affirming  judgment  80  Pac.  1020. 

26  Missouri  Pac.  Ry.  Co.  v.  Haynes,  42  P.  259,  1  Kan.  App.  586. 

A  motion  for  a  continuance,  after  the  beginning  of  the  trial,  to  procure  wit- 
nesses to  support  movant's  credibility,  is  addressed  to  the  discretion  of  the 
court.  McCann  v.  McCann,  103  P.  694,  24  Okl.  264. 

27  Butt  v.  Carson,  48  P.  182,  5  Okl.  160. 

(368) 


Art.  1)  CONTINUANCE  §§  519-520 

does  not  show  that  diligence  has  been  exercised  in  endeavoring  to 
procure  the  absent  witnesses.28 

It  is  not  an  abuse  of  discretion  to  deny  a  continuance  for  the  ab- 
sence of  a  witness  whose  deposition  the  applicant  has  not  attempted 
to  procure,  though  the  witness  was  not  amenable  to  or  served  with 
a  subpoena  but  promised  to  appear  and  testify.29 

A  motion  for  continuance  for  absent  witnesses  is  properly  over- 
ruled, where  the  proposed  testimony  shown  is  immaterial  to  the 
issues.30 

There  was  no  abuse  of  discretion  in  refusing  an  application  of  a 
corporation  defendant  for  a  continuance  to  procure  attendance  of 
its  president,  who  had  absented  himself  with  knowledge  that  the 
case  had  been  set  for  trial.31 

§  520.     Surprise  at  trial 

Denial  of  a  continuance  on  the  ground  of  surprise  from  a  state- 
ment by  plaintiff's  counsel  in  examining  jurors,  which  statement 
was  claimed  to  disclose  ground  for  removal  to  the  federal  court, 
was  not  error  where  plaintiff's  attorney  expressly  denied  the  exist- 
ence of  any  such  ground,  and  the  undisputed  evidence  showed  that 
no  such  ground  existed.32 

Where  on  the  trial  of  a  civil  action,  one  party  introduces  evidence 
tending  to  impeach  the  character  for  veracity  of  the  other  party, 

28  Swope  v.  Burnham,  52  P.  924,  6  Okl.  736 ;  Terrapin  v.  Barker,  109  P.  931, 
26  Okl.  93 ;   Standifer  v.  Sullivan,  30  OkL  365,  120  P.  624 ;  Berry  v.  Dewey,  102 
Kan.  392,  170  P.  1000 ;  King  v.  King,  141  P.  788,  42  Okl.  405 ;  Missouri,  O.  & 
G.  Ry.  Co.  v.  Vandivere,  141  P.  799,  42  Okl.  427 ;  Clark  v.  Dekker,  23  P.  956, 
43  Kan.  692. 

Where  a  sale  was  made  on  May  7th,  and  a  motion  to  set  it  aside  was  filed 
October  1st,  a  continuance  to  allow  the  person  making  the  motion  to  procure 
testimony  was  properly  denied.  McDonald  v.  Citizens'  Nat.  Bank  of  Con- 
cordia,  51  P.  289,  58  Kan.  818. 

29  Wood  v.  French,  136  P.  734,  39  Okl.  685. 

There  was  no  error  in  refusing  an  application  for  a  continuance  because  of 
the  absence  of  a  witness  living  in  another  county,  who,  the  application  show- 
ed, was  sick  and  unable  to  attend,  where  no  effort  had  been  made  to  procure 
the  deposition  of  this  witness  until  four  days  before  the  trial,  and  after  the 
case  was  assigned  for  trial.  Gill  v7  Buckingham,  52  P.  897,  7  Kan.  App.  227. 

so  Standifer  v.  Sullivan,  30  Okl.  ,365,  120  P.  624;    Title  Guaranty  &  Surety 
-Co.  v.  Slinker,  128  P.  696,  35  Okl.  128;  Id.,  128  P.  698,  35  Okl.  153. 

si  Garner  v.  Dodge  City  Wholesale  Grocery  Co.,  102  Kan.  5,  169  P.  219. 

32  St.  Louis  &  S.  F.  R.  Co.  v.  Long,  137  P.  1156,  41  Okl.  177,  Ann.  Cas.  1915C, 
432. 

HON.PI-.&  PRAC.— 24 


§§    521-523  CONTINUANCE   AND   DISMISSAL  (Ch.  10 

and  the  party  sought  to  be  impeached  thereupon  requests,  and  the 
court  allows,  a  delay  in  the  trial  to  enable  the  impeached  party  to 
obtain  witnesses  in  rebuttal  of  such  impeachment,  and  thereupon 
the  other  party,  to  save  time,  withdraws  the  impeaching  evidence, 
and  the  court  orally  instructs  the  jury  to  disregard  such  evidence,  it 
is  not  error  for  the  court  to  revoke  the  order  for  (delay  and  to  at  once 
proceed  with  the  trial.88 

§  521.     Admissions  to  prevent  continuance 

Where  a  party  opposing  a  continuance  asked  for  on  ground  of  the 
absence  of  a  material  witness  admits  that  the  witness,  if  present, 
would  testify  as  stated  in  the  moving  affidavit,  the  trial  court  com- 
mits no  error  in  refusing  the  continuance.34 

Where  the  defendant's  depositions  were  quashed,  and  he  moved 
for  a  continuance,  and  filed  an  affidavit  of  diligence,  and  made  the 
depositions  which  had  been  quashed  a  part  of  his  affidavit,  and 
plaintiff  elected  to  go  to  trial  and  to  admit  the  affidavit,  the  deposi- 
tions were  as  much  a  part  of  the  affidavit  as  though  they  had  been 
copied  on  the  paper  containing  the  balance  of  the  affidavit.35 

A  party  who  agreed  that  statements  contained  in  an  application 
for  a  continuance  could  be  read  as  the  deposition  of  an  absent  wit- 
ness, was  not  entitled  to  impeach  such  testimony  by  showing  prior 
statements  of  the  witness.36 

§  522.     Offer  to  confess  judgment 

The  making  of  an  offer  to  confess  judgment  shall  not  be  a  cause 
for  a  continuance  of  an  action  or  a  postponement  of  the  trial.37 

§  523.     Application  and  affidavit — Forms 

"A  motion  for  a  continuance,  on  account  of  the  absence  of  evi- 
dence, can  be  made  only  upon  affidavit,  showing  the  materiality  of 
the  evidence  expected  to  be  obtained,  and  that  due  diligence  has 
been  used  to  obtain  it,  and  where  the  evidence  may  be;  and  if  it  is 

ss  Gulliford  v.  McQuillen,  89  P.  927,  75  Kan.  454. 

s*  Chandler  v.  Colcord,  32  P.  330,  1  Okl.  260. 

See  Rev.  Laws  1910,  §  5045,  post,  §  528;  Sanford  v.  Gates,  16  P.  807,  38 
Kan.  405. 

35  Bell  v.  Lloyd,  74  P.  242,  67  Kan.  859. ' 

se  National  Council,  Knights  and  Ladies  of  Security,  v.  Owen,  47  Okl.  464, 
149  P.  231. 

37  Rev.  Laws  1910,  §  5302. 

(370) 


Art.l)  CONTINUANCE  §   523 

for  an  absent  witness,  the  affidavit  must  show  where  the  witness  re- 
sides, if  his  residence  is  known  to  the  party,  and  the  probability  of 
procuring  his  testimony  within  a  reasonable  time,  and  what  facts  he 
believes  the  witness  will  prove,  and  that  he  believes  them  to  be  true. 
If  thereupon,  the  adverse  party  will  consent  that  on  the  trial  the 
facts  alleged  in  the  affidavit  shall  be  read  and  treated  as  the  depo- 
sition of  the  absent  witness,  or  that  the  facts  in  relation  to  other 
evidence  shall  be  taken  as  proved  to  the  extent  alleged  in  the  affi- 
davit, no  continuance  shall  be  granted  on  the  ground  of  the  absence 
of  such  evidence."  88 

38  Rev.  Laws  1910,  §  5045. 

Diligence. — An  application  for  a  continuance  for  newly  discovered  evidence 
must  show  due  diligence  and  that  there  is  a  probability  of  procuring  the  tes- 
timony of  the  witnesses  within  a  reasonable  time.  Murphy  v.  Hood  &  Lum- 
ley,  73  P.  261,  12  Okl.  593 ;  Crutchfield  v.  Martin,  117  P.  194,  27  Okl.  764  r 
Fisher  v.  State  (Okl.  Or.  App.)  196  P.  724 ;  Board  of  Regents  of  Kansas  State 
Agricultural  College  v.  Linscott,  1  P.  81,  30  Kan.  240;  Kilmer  v.  St.  Louis, 
Ft.  S.  &  W.  R.  Co.,  14  P.  465,  37  Kan.  84. 

Statement  of  facts. — Where  a  continuance  is  sought  because  of  an  absent 
witness,  the  applicant  must  clearly  show  in  the  application  where  the  witness 
resides,  if  he  knows,  the  probability  of  procuring  his  testimony  within  a  rea- 
sonable time,  and  that  the  facts  affiant  believes  he  will  prove  are  true.  St. 
Louis  &  S.  F.  R.  Co.  v.  Cox,  109  P.  511,  26  Okl.  331 ;  Terrapin  v.  Barker,  109 
P.  931,  26  Okl.  93 ;  Clouston  v.  Gray,  28  P.  983,  48  Kan.  31. 

Materiality. — Affidavit  on  motion  for  continuance  to  procure  additional  evi- 
dence to  rebut  plaintiff's  evidence,  containing  no  statement  of  any  material 
evidence  which  movant  would  have  offered  in  view  of  movant's  failure  to  in- 
troduce alleged  evidence  at  the  argument  after  a  postponement,  did  not  au- 
thorize a  continuance.  Columbian  Nat.  Life  Ins.  Co.  v.  Wirthle  (Okl.)  176 
P.  406 ;  Terrapin  v.  Barker,  109  P.  931;  26  Okl.  93 ;  Chas.  T.  Derr  Const.  Co. 
v.  Gelruth,  120  P.  253,  29  Okl.  538. 

Belief  of  facts. — He  must  show  that  he  believes  to  be  true  the  material  facts 
which  he  believes  the  witness  would  prove.  -Wood  v.  French,  136  P.  734,  39 
Okl.  685. 

Probability  of  procuring  evidence. — The  affidavit  for  continuance  for  the 
absence  of  material  witnesses  should  contain  a  statement  of  the  facts  show- 
ing the  probability  of  procuring  the  evidence  of  such  witnesses.  Creek  Coal 
Mining  Co.  v.  Paprotta  (Okl.)  175  P.  235 ;  Fisher  v.  State  (Okl.  Cr.  App.)  196 
P.  724. 

Verification. — The  denial  of  a  continuance  on  the  ground  that  applicant  de- 
sired to  attend  the  trial  as  a  witness,  but  was  prevented  by  sickness  in  his 
family,  was  not  error,  where  no  one  with  knowledge  of  sickness  swore  to  ei- 
ther certificate  or  application.  Berry  v.  Dewey,  172  P.  27,  102  Kan.  593. 

(371) 


§    523  CONTINUANCE   AND  DISMISSAL  (Ch.  10 

MOTION  FOR  CONTINUANCE 

(Caption.) 

Comes  now  the  plaintiff,  A.  B.,  and  moves  the  court  to  grant  him 
a  continuance  of  the  above-entitled  cause  until  the  next  term  of  this 
court,  for  the  reason  that  (set  out  reasons). 

And  in  support  of  this  motion,  the  affidavit  of is  attached 

hereto,  marked  Exhibit  A,  and  made  a  part  hereof. 

X.  Y.,  Attorney  for  Plaintiff. 

(Attach  affidavits.) 

AFFIDAVIT  FOR  CONTINUANCE 

(Caption.) 

State  of  Oklahoma, 

County  of 

A.  B.,  being  first  duly  sworn,  upon  oath  says: 

That  he  is  the  plaintiff  in  this  action;  that  C.  D.  is  a  material 
witness  for  this  plaintiff,  without  the  benefit  of  whose  testimony  de- 
ponent cannot  safely  proceed  to  the  trial  of  said  action ;  that  said 
witness  is  absent;  that  he  has  been  duly  subprenaed;  that  he 
resides  in  the  county  where  the  above  case  is  pending;  that  his 
testimony  is  material ;  that  such  witness  is  not  absent  by  the  per- 
mission, directly  or  indirectly,  of  this  applicant;  that  he  expects 
that  he  will  be  able  to  procure  the  testimony  of  such  witness  at  the 
next  term  of  this  court ;  that  this  application  for  a  continuance  is  not 
made  for  the  purpose  of  delay,  but  to  enable  him  to  procure  the 
testimony  of  such  absent  witness ;  that  there  is  no  other  witness  by 
whom  he  can  prove  the  same  facts ;  that  deponent  expects  to  prove 
by  said  absent  witness  the  following  facts :  (Stating  same.)  (Set 
forth  any  other  material  facts  as  to  cause  of  absence  of  witness,  etc.) 


Subscribed  and  sworn  to  before  me  this  day  of  , 

19—.  (Jurat.) 

JOURNAL  ENTRY  OF  ORDER  GRANTING  CONTINUANCE 

(Caption.) 

Now  on  this day  of ,  19 — ,  this  cause  comes  on  for 

hearing  on  the  motion  of  plaintiff  for  a  continuance  of  the  above- 
entitled  cause  until  the  next  term  of  this  court,  said  cause  having 

(372) 


Art.  1)  CONTINUANCE  §§  523~526 

been  heretofore  regularly  set  for  trial  on  this  date,  the  plaintiff  ap- 
pearing by  his  attorney  X.  Y.,  and  the  defendant  appearing  by  his 
attorney,  G.  H.,  and  the  court,  upon  consideration  of  said  motion 
and  affidavits  presented  in  support  thereof  and  oral  testimony  heard, 
and  being  fully  advised  in  the  premises,  finds  that  said  plaintiff 
would  be  prevented  from  having  a  fair  and  impartial  trial  on  ac- 
count of  the  absence  of  material  evidence  which  he  has  used  due 
diligence  to  obtain,  and  that  it  is  probable  that  said  evidence  may 
be  produced  by  plaintiff  at  the  next  term  of  this  court;  and  the 
said  defendant,  having  refused  to  consent  that  on  the  trial  the  facts 
alleged  in  the  affidavit  of  plaintiff  for  a  continuance  might  be  read 
and  treated  as  the  deposition  of  the  absent  witness. 

It  is  therefore  by  the  court  ordered  that  this  cause  be  and  the 
same  is  hereby  continued  to  the  next  term  of  this  court,  and  that 
the  costs  of  such  continuance  shall  be  taxed  against  said  plaintiff. 

,  Judge. 

§  524.     Time  of  making 

An  application  for  continuance  should  be  made  without  delay.30 
Where,  by  a  rule  of  court,  a  party  desiring  the  continuance  of  a 
cause  is  required  to  make  his  application  therefor  on  the  first  day 
of  the  term,  or  show  cause  why  he  has  not  done  so,  it  is  not  er- 
ror for  the  court  to  overrule  such  an  application  made  during  the 
term,  if  no  such  showing  is  made.40 

§  525.     Further  continuances 

The  denial  of  a  continuance  was  not  an  abuse  of  discretion,  where 
the  cause  had  been  continued  three  times  on  practically  the  same 
grounds  and  it  did  not  appear  that  a  further  continuance  would  be 
to  any  advantage.41 

§  526.     Objections — Waiver 

By  withdrawing  his  answer  and  demurring  to  the  petition  and 
electing  to  stand  on  his  demurrer  after  the  overruling  thereof, 

30  in  an  action  by  an  administrator,  there  was  no  abuse  of  discretion  in  re- 
fusing a  postponement  of  the  trial,  in  order  that  defendant  might  have  a  hear- 
ing upon  his  application  to  revoke  the  letters  of  administration;  the  applica- 
tion not  having  been  filed  in  the  probate  court  until  the  day  of  the  trial,  al- 
though the  suit  had  been  pending  for  nearly  six  months.  Livermore  v.  Ayres, 
119  P.  549,  86  Kan.  50. 

40  Lesh  v.  Meyer,  66  P.  245,  63  Kan.  524. 

*,i  Weems  v.  Melton,  47  Okl.  706,  150  P.  720. 

(373) 


§    527  CONTINUANCE  AND  DISMISSAL  (Ch.  10 

a  defendant  waives  the  error  in  overruling  his  previous  application 
for  a  continuance  on  account  of  the  absence  of  witnesses.42 


ARTICLE  II 

DISMISSAL 

Sections 

527.  Dismissal  without  prejudice. 

528.  Right— Discretion. 

529.  Involuntary — Discretion — Grounds. 

530.  Process — Pleadings — Non-compliance    with    order. 

531.  Continuance. 

532.  Want  of  prosecution. 

533.  Forms — Motion  to  dismiss — Order. 

534.  Reinstatement, 

535.  Dismissal  without  order  of  court. 

536.  Parties. 

537.  Dismissal  as  to  part  of  defendants. 

538.  Trial  of  Counterclaim  after  dismissal. 

539.  Jurisdiction  subsequent. 

§  527.     Dismissal  without  prejudice 

"An  action  may  be  dismissed,  without  prejudice  to  a  future  ac- 
tion: 

"First.  By  the  plaintiff,  before  the  final  submission  of  the  case 
to  the  jury,  or  to  the  court  where  the  trial  is  by  the  court. 

"Second.  By  the  court,  where  the  plaintiff  fails  to  appear  on  the 
trial. 

"Third.  By  the  court,  for  the  want  of  necessary  parties. 

"Fourth.  By  the  court,  on  the  application  of  some  of  the  defend- 
ants, where  there  are  others  whom  the  plaintiff  fails  to  prosecute 
with  diligence. 

"Fifth.  By  the  court,  for  disobedience  by  the  plaintiff  of  an  order 
concerning  the  proceedings  in  the  action. 

"Sixth.  In  all  other  cases,  upon  the  trial  of  the  action,  the  deci- 
sion must  be  upon  the  merits."  43 

42  Day  v.  Mooney,  41  P.  142,  3  Okl.  608. 

43  Rev.  Laws  1910,  §  5125. 

Dismissal  of  action  under  Rev.  Laws  1910,  §  5125,  is  judgment,  and  requires 
order  of  court.  Mullen  v.  Noah,  64  Okl.  181,  166  P.  742.  Authority  given 
plaintiff  by  Rev.  Laws  1910,  §  5126,  to  dismiss  without  order  of  court  does 
not  deprive  court  of  power  to  inquire  into  means  by  which  motion  was  ob- 
tained. Id. 

Gen.  St.  1897,  c.  95,  §  393,  provides  that  plaintiff  may  dismiss  his  action 

(374) 


Art.  2)  DISMISSAL  §§  528-529 

§  528.     Right— Discretion 

The  right  of  the  plaintiff  to  dismiss  his  action  without  prejudice 
at  any  time  before  the  final  submission  of  the  same  is  absolute.4* 
But,  where  the  plaintiff  has  submitted  his  case  by  introducing  evi- 
dence and  filing  a  written  brief,  and  the  court  has  taken  the  case 
under  advisement  and  has  considered  the  merits,  the  plaintiff  can- 
not as  a  matter  of  right  dismiss  his  action  without  prejudice.45 

Where  the  evidence  is  closed,  the  jury  have  returned  their  find- 
ings, and  the  case  is  ready  for  judgment,  there  is  a  "final  submis- 
sion" of  the  case.46 

After  the  trial  court  sustains  a  demurrer  to  the  plaintiff's  evi- 
dence, it  is  within  its  discretion  to  set  aside  such  order  and  allow 
the  cause  to  be  dismissed  by  the  plaintiff  without  prejudice.47 

§  529.     Involuntary — Discretion — Grounds 

Whether  it  is  an  abuse  of  discretion  to  refuse  to  continue  an  ac- 
tion and  to  dismiss  the  case  for  want  of  prosecution  and  to  refuse  to 

without  prejudice  before  the  final  submission  of  the  case  to  the  jury  or  to  the 
court,  where  the  trial  is  by  the  court.  In  actions  to  set  aside  a  will,  a  jury 
acts  merely  for  the  purpose  of  advising  the  court,  which  may  refuse  to  accept 
their  findings.  In  such  an  action,  the  court  submitted  to  the  jury  certain 
particular  questions  of  fact,  which  covered  part  of  the  issues  of  the  case. 
After  the  jury  had  answered  the  questions,  plaintiff  asked  leave  to  dismiss 
the  action  without  prejudice,  which  was  denied.  Thereupon  the  court  pro- 
ceeded, after  the  jury  was  discharged,  to  hear  testimony  on  another  issue  not 
passed  on  by  the  jury.  Held,  that  it  was  error  to  refuse  to  permit  a  dismissal. 
Osborne  v.  Davies,  57  P.  941,  60  Kan.  695. 

44  New  Hampshire  Banking  Co.  v.  Ball,  48  P.  137,  57  Kan.  812. 

Under  Rev.  I>aws  1910,  §§  5033,  5125,  the  refusal  of  the  court  to  permit  the 
plaintiff  below,  after  the  introduction  of  the  evidence,  to  dismiss  without 
prejudice,  to  which  it  excepted,  was  error.  Boardman  Co.  v.  Board  of  Com'rs 
of  Atoka  County  (Okl.)  174  P.  272. 

*5  Warner  v.  Warner,  112  P.  97,  83  Kan.  548. 

46  Dickerman  v.  Crane,  57  P.  305,  8  Kan.  App.  795. 

*7  Hutchison  v.  Brown  (Okl.)  167  P.  624. 

Where  demurrer  to  the  evidence  was  sustained,  and  the  jury  discharged, 
and  a  motion  for  new  trial  overruled,  and  judgment  rendered  against  plain- 
tiff, the  court  had  power  thereafter,  at  the  same  term,  on  motion  of  plaintiff, 
to  vacate  the  judgment  and  grant  .plaintiff's  motion  to  dismiss  without  prej- 
udice and  render  a  new  judgment  against  him  for  costs.  Missouri  Pac.  Ry. 
Co.  v.  Berry,  98  P.  204,  79  Kan.  19. 

Where  a  court  is  considering  a  demurrer  to  plaintiff's  evidence,  and  giving 
reasons  why  it  will  have  to  be  sustained,  it  is  error  to  overrule  an  application 
by  plaintiff  to  dismiss  without  prejudice.  Pugsley  v.  Chicago,  R.  I.  &  P.  Ry. 
Co.,  77  P.  579,  69  Kan.  599. 

(375) 


§   529  CONTINUANCE  AND  DISMISSAL  (Ch.  10 

reinstate  it  depends  on  the  particular  facts,  and  is  not  governed  by 
any  general  rule.48 

A  motion  for  a  nonsuit  is  available  in  cases  tried  to  the  court 
without  a  jury.49 

While  the  plaintiff  has  a  right  to  dismiss  without  prejudice, 
a  defendant,  brought  into  court  by  summons,  has  no  right  to  de- 
mand that  the  action  be  dismissed  as  to  any  proper  party  plaintiff.5* 

Where  both  parties  claim  to  own  and  be  in  possession  of  real 
estate,  the  subject  of  an  action  to  quiet  title,  and  pray  for  judg- 
ment and  introduce  evidence  presenting  questions  of  law  and  fact, 
it  is  error  to  dismiss  the  action.51 

The  trial  court,  in  the  exercise  of  its  discretion,  may  dismiss  an 
action  without  prejudice  after  it  has  sustained  a  demurrer  to  the 
evidence  and  heard  and  overruled  a  motion  for  a  new  trial.62 

When  the  question  of  jurisdiction  was  properly  presented  and  it 
appeared  that  a  local  defendant  was  sued  to  subject  a  nonresident 
defendant  to  litigation  in  the  county  where  the  suit  was  brought, 
the  nonresident  was  entitled  to  a  dismissal.53 

In  the  absence  of  a  showing  of  prejudice,  a  petition  filed  in  the 
office  of  the  clerk  of  the  district  court  will  not  be  dismissed  because 
entitled  in,  and  by  the  clerk  given,  the  same  docket  number  as  a 
former  case  between  the  same  parties  which  had  been  -finally  closed 
in  that  court.54 

The  question  of  the  ownership  of  notes  sued  on  cannot  be  raised 
by  a  motion  to  dismiss.55 

It  is  indispensable,  to  give  a  court  jurisdiction  in  attachment  pro- 
ceedings, that  there  should  be  personal  service  of  the  summons  in 
the  action  upon  the  defendant,  or  that  the  order  of  attachment  be 
levied  upon  property  of  the  defendant,  or  that  an  order  of  gar- 

48  Bane  v.  Cox,  88  P.  1083,  75  Kan.  184. 

49  Lyon  v.  Lyon,  39  Okl.  Ill,  134  P.  650. 

eo  Roberts  v.  Tomlinson,  57  P.  1060,  9  Kan.  App.  85. 

si  Wilkinson  v.  Mears,  94  P.  136,  77  Kan.  273;  Inman  v.  Same,  94  P.  136,  77 
Kan.  853. 

•52  National  Hotel  Co.  v.  Crane  Bros.  Mfg.  Co.,  31  P.  682,  50  Kan.  49,  fol- 
lowing Ashmead  v.  Ashmead,  23  Kan.  262. 

C3  Majkemson  v.  Edwards,  101  Kan.  269,  166  P.  508. 

P4  Allison  v.  Bryan,  109  P.  934,  26  Okl.  520,  30  L.  R.  A.  (N.  S.)  146,  138  Am. 
St.  Rep.  988. 

66  Waldock  v.  Winkler,  51  Okl.  485,  152  P.  99, 

(376) 


Art.  2)  DISMISSAL  §§  530-531 

nishment  should  be  served  upon  a  garnishee  having  property  in 
his  possession  belonging  to  the  defendant,  or  who  is  indebted  to 
such  defendant,  otherwise  any  proceedings  taken  in  the  cause  are 
coram  non  judice  and  void,  and  the  cause  must  be  dismissed.56 

§  530.    Process — Pleadings — Noncompliance  with  order 

An  action  will  not  be  dismissed,  on  motion  of  defendant,  because 
there  was  no  service  of  summons  on  him  within  60  days  from  the  fil- 
ing of  a  petition.57 

In  an  original  action  in  the  supreme  court,  where  the  parties  sub- 
mit the  case  on  the  pleadings,  and  the  pleadings  fail  to  disclose  a 
right  of  recovery  in  plaintiff,  a  judgment  of  dismissal  and  for  costs 
will  be  entered.68 

Where  the  court  directs  that  plaintiff  amend  his  petition  by  strik- 
ing out  irrelevant  and  redundant  allegations  the  court  may,  on 
plaintiff's  refusal  to  so  amend,  dismiss  the  action.58 

Likewise,  where  the  court  properly  sustained  a  motion  to  require 
three  causes  of  action  set  out  in  a  petition  to  be  separately  stated 
and  numbered,  on  the  refusal  of  the  plaintiff  to  comply  with  the 
order,  a  dismissal  of  the  action  was  not  error.60 

An  action  against  an  agent  and  trustee  for  money  for  which  he 
had  not  accounted  after  demand  was  properly  dismissed  on  failure 
of  plaintiff  to  comply  with  an  order  to  make  the  petition  definite 
by  stating  approximately  the  date  of  demand.61 

§  531.    Continuance 

When  a  continuance  is  granted  as  to  one  member  of  a  defendant 
partnership,  and  plaintiff  refuses  to  proceed  with  the  trial  against 
the  other  and  recover  a  separate  judgment,  there  is  no  error  in  dis- 
missing the  action  as  to  him,  without  prejudice.62 

It  is  error  for  the  district  court  to  dismiss  an  appeal  from  a 


56  Central  Loan  &  Trust  Co.  v.  Campbell  Commission  Co.,  49  P.  48,  5  Okl. 
396,  judgment  reversed  19  S.  C.  346,  173  U.  S.  84,  43  L.  Ed.  623. 
ST  Green  v.  McCracken,  67  P.  857,  64  Kan.  330. 
ss  Territory  v.  Jacobs,  70  P.  197,  12  Okl.  152. 
59  Drake  v.  First  Nat.  Bank  of  Ft.  Scott,  7  P.  219,  33  Kan.  634. 
«o  Burdick  v.  Carbondale  Inv.  Co.,  80  P.  40,  71  Kan.  121. 
«i  Null  v.  Potts,  157  P.  415,  98  Kan.  1. 
62  Clark  v.  Dekker,  23  P.  956,  43  Kan.  692. 

(377) 


§§    532-533  CONTINUANCE   AND  DISMISSAL  (Ch.  10 

justice  of  the  peace,  because  the  record  fails  to  show  that  a  continu- 
ance for  more  than  90  days  was  with  the  consent  of  the  parties.03 

§  532.    Want  of  prosecution 

A  case  should  be  dismissed  without  prejudice  where  the  plaintiff 
fails  to  appear,  and  defendant  does  not  file  a  counterclaim  or  set- 
off.64 

Where  specifications  and  charges  for  disbarment  were'  filed 
and  a  referee  was  appointed,  who  filed  a  report,  and  where  the  com- 
plainant, after  the  matter  was  called  to  his  attention  by  the  referee, 
took  no  action,  the  proceeding  will  be  dismissed  for  want  of  prose- 
cution.65 

When  an  application  for  a  writ  of  prohibition  had  been  made,  and 
time  extended  to  the  petitioner  in  which  to  file  briefs,  and  the  same 
are  not  filed  within  such  time,  the  application  may  be  dismissed  for 
want  of  prosecution.66 

Where,  after  issue  joined,  the  parties  enter  into  and  file  a  stipula- 
tion that  the  case  shall  be  submitted  to  the  court  without  a  jury,  to 
be  decided  upon  documents  then  on  file,  and  to  be  taken  up  by  the 
court  at  its  pleasure,  without  reference  to  the  presence  of  attorneys 
of  either  party,  and  the  court's  attention  is  called  to  the  stipulation, 
it  is  error  for  the  court  thereafter,  in  the  absence  of  plaintiff's  at- 
torney, to  dismiss  the  action  for  want  of  prosecution.67 

§  533.     Forms — Motion  to  dismiss — Order 

MOTION  TO  DISMISS 

(Caption.) 

Now  comes  the  said  defendant,  and  moves  the  court  to  dismiss 
the  above-entitled  action  for  want  of  prosecution  for  the  reason 
that  the  plaintiff  failed  to  appear  at  the  time  said  cause  had  been 

regularly  set  down  for  trial,  to  wit,  on  the  day  of  . 

19—. 

X.  Y.,  Attorney  for  Defendant. 

es  Rhyne  v.  Manchester  Assur.  Co.,  78  P.  558,  14  Okl.  555. 

**  Kansas  City,  W.  &  N.  W.  R.  Co.  v.  Walker,  32  P.  365,  50  Kan.  739. 

so  In  re  Townsend  (Okl.)  168  P.  218. 

ee  Seargeant  v.  Cullison,  38  Okl.  154,  132  P.  345. 

c7  Lardner  v.  Windle,  45  P.  945,  4  Kan.  App.  175. 

(378) 


Art.  2)  DISMISSAL  §§  533-534 


ORDER 

(Caption.) 

Now  on  this  day  of  ,  19 — ,  this  cause  comes  on 

for  hearing  on  the  motion  of  the  defendant  to  dismiss  said  action 
for  want  of  prosecution,  ,and  it  appearing  to  the  court  that  said 
cause  has  heretofore  been  regularly  set  down  for  hearing  on  this 
date,  and  the  plaintiff  failing  to  appear  on  the  trial  to  prosecute 
'  said  cause,  either  in  person  or  by  attorney. 

It  is  by  the  court  ordered  and  adjudged  that  said  cause  be  and  the 
same  is  hereby  dismissed  at  the  cost  of  plaintiff,  without  prejudice 
to  a  future  action. 

,  Judge. 

MOTION  TO  DISMISS  FOR  WANT  OP  JURISDICTION 

(Caption.) 

Now  comes  the  said  defendant  for  the  purpose  of  this  motion 
only,  and  not  appearing  herein  for  any  other  purpose,  and  moves 
the  court  to  dismiss  this  action  upon  the  ground  that  it  has  no 
jurisdiction  of  the  defendant,  for  the  reason  that  no  service  of  sum- 
mons, either  actual  or  constructive,  has  been  made  upon  said  de- 
fendant, and  said  defendant  has  not  appeared  herein  except  for  the 
purpose  of  this  motion. 

X.  Y.,  Attorney  for  Defendant, 

For  the  Purpose  of  This  Motion  Only. 

§  534.     Reinstatement 

Within  the  term  of  court,  the  trial  court  or  judge  may  vacate  an 
order  or  judgment  dismissing  an  action  at  plaintiff's  cost,  and  may 
order  the  cause  reinstated  and  grant  time  to  file  amended  plead- 
ings.68 

If  an  order  of  dismissal  has  been  entered,  but  is  afterwards,  at  the 
same  term,  set  aside,  and  the  cause  continued  for  a  further  hearing, 
the  court  does  not  thereby  lose  jurisdiction  of  the  parties.69 

A  cause  may  be  reinstated  after  dismissal  without  service  of  a 


es  Mulcahy  v.  City  of  Moline,  171  P.  597,  101  Kan.  532,  102  Kan.  531 ;  Chinn 
v.  Bretches,  22  P.  426,  42  Kan.  316. 

6»  Hutchinson  Salt  &  Stock  Yards  Co.  v.  Baldridge.  36  P.  1005,  53  Kan.  522. 

(379) 


§§    534-535  CONTINUANCE   AND   DISMISSAL  (Ch.  10 

new  summons,  where  the  order  of  reinstatement  is  made  at  the 
same  term  and  while  the  opposing  counsel  is  in  court.70 

Where  the  plaintiff's  action  is  dismissed,  but  the  case  is  continued 
as  to  defendant's  counterclaim,  the  court  has  no  authority,  at  a 
subsequent  term,  before  the  issues  raised  by  the  counterclaim  have 
been  tried,  to  reinstate  plaintiff's  action  upon  motion.71 

A  motion  to  set  aside  a  dismissal  having  been  overruled,  a  court 
cannot,  three  months  thereafter,  set  aside  the  order,  and  reinstate 
the  case.72 

A  cause  having  been  dismissed  for  want  of  prosecution,  and  ap- 
plication filed  to  reinstate  the  cause  for  unavoidable  casualty,  the 
court  should  exercise  a  wise  discretion,  and  where  it  clearly  appears 
by  affidavits  that  the  party  was  unavoidably  absent,  that  his  de- 
fense was  meritorious,  that  he  appeared  immediately  after  the  time 
set  for  trial  and  before  adjournment,  and  was  unavoidably  absent, 
the  case  should  be  reinstated.78 

Where  a  case  has  been  set  for  trial,  and  the  attorneys  absent 
themselves  from  the  courtroom,  and  during  their  absence  the  case 
is  reached  and  dismissed  for  want  of  prosecution,  and  the  only  show- 
ing is  that  they  left  the  room  a  short  time  before  the  noon  adjourn- 
ment, believing  the  case  on  trial  would  last  the  remainder  of  that 
session,  it  is  not  error  to  refuse  to  reinstate  the  same.74 

If  an  action  is  dismissed  and  afterwards  reinstated,  and  a  trial 
thereof  had,  no  error  can  be  predicated  on  the  dismissal.75 

§  535.    Dismissal  without  order  of  court 

"A  plaintiff  may,  on  the  payment  of  costs  and  without  an  order 
of  court,  dismiss  any  civil  action  brought  by  him  at  any  time  be- 
fore a  petition  of  intervention  or  answer  praying  for  affirmative 
relief  against  him  is  filed  in  the  action.  A  plaintiff  may,  at  any 
time  before  the  trial  is  commenced,  on  payment  of  the  costs 
and  without  any  order  of  court,  dismiss  his  action  after  the  filing 
of  a  petition  of  intervention  or  answer  praying  for  affirmative  re- 

70  Pierce  v.  Shelton,  144  P.  219,  93  Kan.  189. 

71  Rumsey  v.  Kiowa  Town  Co.,  53  P.  886,  7  Kan.  App.  674. 

72  Kauter  v.  Fritz,  47  P.  187,  5  Kan.  App.  756. 

73  Aultman-Taylor  Machinery  Co.  v.  Caldwell,  78  P.  319,  14  Okl.  472. 

74  Kline  v.  Higday,  79  P.  774,  15  Okl.  137. 

75  Howe  v.  Parker,  90  P.  15,  18  Okl.  282. 

(380) 


Art.  2)  DISMISSAL  §  535 

lief,  but  such  dismissal  shall  not  prejudice  the  right  of  the  inter- 
venor  or  defendant  to  proceed  with  the  action.  Any  defendant  or 
intervenor  may,  in  like  manner,  dismiss  his  action  against  the  plain- 
tiff, without  an  order  of  court,  at  any  time  before  the  trial  is  be- 
gun on  payment  of  the  costs  made  on  the  claim  filed  by  him.  All 
parties  to  a  civil  action  may  at  any  time  before  trial,  without 
an  order  of  court,  and  on  payment  of  costs;  by  agreement,  dismiss 
the  action.  Such  dismissal  shall  be  in  writing  and  signed  by  the 
party  or  his  attorney,  and  shall  be  filed  with  the  clerk  of  the  district 
court,  the  judge  or  clerk  of  the  county  court,  or  the  justice,  where 
the  action  is  pending  who  shall  note  the  fact  on  the  proper  record : 
Provided,  such  dismissal  shall  be  held  to  be  without  prejudice,  un- 
less the  words  'with  prejudice'  be  expressed  therein."  76 

A  dismissal  complying  with  this  statute  becomes  effective  im- 
mediately on  the  filing  of  same,  without  an  order  of  court." 

Before  a  motion  by  plaintiff  to  dismiss  the  cause  can  become  ef- 
fective, it  is  necessary  that  all  costs  accumulated  up  to  the  time  of 
the  filing  of  the  motion  be  paid.78 

76  Rev.  Laws  1910,  §  5126;   Davis  v.  Mimey,  60  Okl.  244,  159  P.  1112. 

Filing  by  defendants  of  motion  to  dismiss  signed  by  plaintiff  did  not  oper- 
ate as  dismissal  under  Rev.  Laws  1910,  §  5126,  where  on  hearing  trial  court 
found  that  plaintiff  did  not  understand  effect  of  motion  and  wished  to  con- 
tinue action.  Mullen  v.  Noah,  64  Okl.  181,  166  P.  742. 

In  an  action  on  an  attachment  undertaking  by  the  assignee  of  defendant 
in  the  attachment  for  damages  against  the  sureties,  it  appeared  that  the  prin- 
cipal on  the  undertaking,  who  was  not  made  a  party,  had  a  judgment  against 
defendant  in  the  attachment,  obtained  in  the  attachment  action,  greatly  in  ex- 
cess to  the  alleged  damages,  which  was  unpaid,  and  that  defendant  in  the  at- 
tachment was  insolvent.  Held  that,  after  the  principal  had  been  made  a  par- 
ty and  had  filed  an  answer  setting  forth  such  facts,  it  was  not  error  to  refuse 
to  allow  plaintiff  to  dismiss  his  action  against  the  principal,  so  that  he  might 
proceed  against  the  sureties  alone.  Gerson  v.  Hanson,  9  P.  230,  34  Kan.  590. 

77  Stuart   v.  Hicks,  52  Okl.  665,  153  P.  143;    Davis  v.  Mimey,  60  Okl.   244, 
159  P.  1112. 

A  cause  held  effectively  dismissed  without  prejudice  on  the  date  on  which 
plaintiff  filed  a  written  dismissal  thereof,  though  subsequent  thereto  defend- 
ant filed  a  stipulation  of  dismissal  with  prejudice  obtained  from  plaintiff  prior 
to  dismissal  by  him.  Stuart  v.  Hicks,  52  Okl.  665,  153  P.  143. 

7  s  Oklahoma  City  Land  &  Development  Co.  v.  Patterson  (Okl.)  175  P.  934; 
Davis  v.  Mimey,  60  Okl.  244,  159  P.  1112 ;  Interstate  Crude  Oil  Co.  v.  Young, 
118  P.  257,  29  Okl.  465. 

In  ejectment,  and  to  clear  title  to  land,  where  C.  filed  a  cross-petition  set- 
ting up  his  interest,  and  thereafter  filed  a  written  dismissal  of  cross-petition, 
but  paid  no  part  of  costs,  there  w,as  no  dismissal  as  to  him  and  the  court  did 

(381) 


535-538  CONTINUANCE   AND  DISMISSAL  (Ch.  10 


VOLUNTARY  DISMISSAL 

(Caption.) 

Comes  now  the  above-named  plaintiff  and  dismisses  this  action, 
at  his  cost,  without  prejudice  to  a  future  action. 

G.  H.,  Attorney  for  Plaintiff. 

• 

STIPULATION  TO  DISMISS 

(Caption.) 

It  is  hereby  stipulated  and  agreed  by  and  between  the  parties 
hereto,  that  the  above-entitled  action  be  dismissed,  at  the  cost  of 
plaintiff  (or  defendant)  with  (or  without)  prejudice  to  a  future  ac- 
tion. 

G.  H.,  Attorney  for  Plaintiff. 
X.  Y.,  Attorney  for  Defendant. 
§  536.     Parties 

Where  the  trustees  of  a  church  sue  for  specific  performance,  and 
two  of  them  move  to  dismiss,  contrary  to  the  wishes  of  the  members 
of  the  church,  the  court  did  not  err  in  allowing  the  suit  to  proceed 
under  the  direction  of  the  other  trustees  elected  to  their  place.78 

§  537.     Dismissal  as  to  part  of  defendants 

Plaintiff  can,  before  trial,  dismiss  as  to  one  of  the  defendants 
without  affecting  the  liability  of  the  codefendants.80 

The  filing  of  an  amended  petition  omitting  the  name  of  one  de- 
fendant and  not  referring  to  or  adopting  any  part  of  the  original 
petition  operates  as  a  dismissal  as  to  the  defendant  omitted.81 

§  538.    Trial  of  counterclaim  after  dismissal 

"In  any  place  where  a  set-off  or  counterclaim  has  been  presented, 
the  defendant  shall  have  the  right  of  proceeding  to  the  trial  of  his 

not  err  in  overruling  his  motion  to  reinstate  the  case.  Cowokochee  v.  Chap- 
man (Okl.)  171  P.  50. 

Plaintiff  has  the  right,  after  payment  of  costs,  to  dismiss  his  action,  with- 
out an  order  of  court  at  any  time  before  trial  is  commenced,  but  the  filing  of 
the  preecipe  without  paying  of  costs  is  not  a  dismissal  of  the  action.  State 
v.  Pitchford  (Okl.)  171  P.  448. 

7»  Berry  v.  Second  Baptist  Church  of  Still  water,  130  P.  585,  37  Okl.  117. 

so  Edwards  v.  Kenstrom,  65  P.  249,  63  Kan.  883. 

si  Rogers  v.  Bass  &  Harbour  Co.,  47  Okl.  786,  150  P.  706. 

(382) 


Art.  2)  DISMISSAL  §§  538-539 

claim,  although  the  plaintiff  may  have  dismissed  his  action  or  failed 
to  appear."  82 

Where  one  filed  a  written  dismissal,  which  the  court  refused  to 
set  aside,  the  rendering  of  a  final  judgment,  without  giving  him  his 
day  in  court  as  a  defendant,  and  upon  the  issues  joined  upon  the 
allegations  of  his  answer  and  cross-petition  was  error.83 

When  a  defendant  files  a  cross-petition  against  a  codefendant,  his 
right  to  have  such  cross-petition  tried  is  not  affected  by  the  dis- 
missal of  the  petition  by  the  plaintiff  as  to  such  codefendant.84 

In  a  suit  to  have  two  deeds  adjudged  mortgages  and  for  an  ac- 
counting, wherein  judgment  was  entered  declaring  the  deeds  to 
be  mortgages  and  the  hearing  on  the  accounting  was  continued, 
plaintiffs'  motion  to  dismiss  their  action  for  accounting  was  proper- 
ly overruled,  where  it  appeared  that  defendant  had  rights  which 
should  be  determined  in  the  action  in  which  the  deeds  were  de- 
clared to  be  mortgages.85 

An  answer  setting  up  limitations  against  the  foreclosure  of  a 
mortgage,  followed  by  a  prayer  for  the  cancellation  of  the  mort- 
gage, and  the  quieting  of  defendant's  title  to  the  mortgaged  premis- 
es, is  not  a  set-off  or  counterclaim,  so  as  to  entitle  the  defendant 
to  a  trial  notwithstanding  the  dismissal  of  the  action  by  the  plain- 
tiff.86 

§  539.    Jurisdiction  subsequent 

When  a  motion  to  dismiss  is  made  by  the  plaintiff  and  called  to 
the  attention  of  the  court,  its  jurisdiction  over  the  parties  and  the 
subject-matter  is  at  an  end,  except  to  render  and  enter  a  formal  or- 
der of  dismissal.87 

82  Rev.  Laws  1910,  §  5127;   Wyman  v.  Herard,  59  P.  1009,  9  Okl.  35. 

Where  plaintiff  in  ejectment  dismisses  his  cause  of  action  after  defendant 
has  filed  a  counterclaim  claiming  an  interest  in  the  land  and  asking  affirma- 
tive relief,  defendant  has  a  right  to  proceed  to  trial  upon  such  counterclaim. 
Long  v.  Bagwell,  38  Okl.  312,  133  P.  50. 

ss  Cowokochee  v.  Chapman  (Okl.)  171  P.  50. 

s*  Kolp  v.  Parsons,  50  Okl.  372,  150  P.  1043. 

85  Holmes  v.  Holt,  136  P.  246,  90  Kan.  774,  judgment  affirmed  on  rehearing 
139  P.  1030,  92  Kan.  254,  and  affirmed  on  second  rehearing  142  P.  369,  93  Kan. 
7. 

»e  Corlett  v.  Mutual  Ben.  Life  Ins.  Co.,  55  P.  844.  60  Kan.  134. 

87  New  Hampshire  Banking  Co.  v.  Ball,  51  P.  899,  59  Kan.  55. 

(383) 


§  540 


PLEADINGS 


(Ch.ll 


CHAPTER  XI 


PLEADINGS 

Sections 

540-544.  Article  I — In  general. 

545-553.  Article  II. — Rules  of  pleading. 

554-561.  Article  III. — Rules  for  construing  pleadings. 

562-587.  Article  IV.— Petition. 

562.  Division  I. — In  general. 

563-579.  Division  II. — Contents,  form,   sufficiency,   and   construction. 

580-585.  Division  III. — Joinder,  splitting,  consolidation,  and  severance. 

586-587.  Division  IV.— Exhibits  and  prayer. 

588-637.  Article  V.— Answer. 

588-602.  Division  I. — Answer  in  general. 

603-606.  Division  II. — General  denial. 

607-615.  Division  III.— Verified  denial. 

616-635.  Division  IV. — Counterclaim  and  set-off. 

636-637.  Division  V. — Unauthorized  pleas. 

638-645.  Article  VI.— Reply. 

646-648.  Article  VII.— Filing  and  subscribing. 

649-660.  Article  VIII. — Amended  and  supplemental  pleadings. 

661-664.  Article  IX. — Defects  and  objections. 

665-702.  Article  X. — Motions  and  orders  thereon. 

665-673.  Division  I. — Motions  in  general. 

674-678.  Division  II — Orders. 

679-702.  Division  III. — Particular  motions. 

703-721.  Article  XI. — Demurrer. 

722-733.  Article  XII. — Issues,  proof,  and  variance. 

722-728.  Division  I. — Issues. 

729-732.  Division  II. — Proof. 

733.  Division  III. — Variance. 


ARTICLE  I 

IN  GENERAL 

Sections 

540.  Defined. 

541.  Pleadings  allowed. 

542.  Nature,  how  determined. 

543.  Caption — Forms. 

544.  Counties. 

§  540.     Defined 

"The  pleadings  are  the  written  statements,  by  the  parties,  of  the 
facts  constituting  their  respective  claims  and  defenses."  x 

i  Rev.  Laws  1910,  §  4734. 
(384) 


Art.  1)  IN  GENERAL  §§  541-543 

§  541.     Pleadings  allowed 

"The  only  pleadings  allowed  are: 

"First.    The  petition  by  the  plaintiff. 

"Second.    The  answer  or  demurrer  by  the  defendant. 

"Third.     The  demurrer  or  reply  by  the  plaintiff. 

"Fourth.  The  demurrer  by  the  defendant  to  the  reply  of  the 
plaintiff."  2 

"All  fictions  in  pleadings  are  abolished.3 

§  542.     Nature,  how  determined 

The  nature  of  a  pleading  is  determined,  not  by  the  title,  but  by 
the  subject-matter.  A  motion  to  dismiss,  setting  up  defensive  mat- 
ters, cannot  be  treated  as  a  motion,  but  may  be  treated  as  an  an- 
swer.4 

§  543.     Caption— Forms 

"The  title  of  a  cause  shall  not  be  changed  in  any  of  its  stages."  6 

• 

CAPTIONS 

State  of  Oklahoma,  ] 

L  SS. I 

County  of .J  * 

In  the Court  of  Said  County  and  State. 

A.  B.,  Plaintiff, 

v. 
C.  D.,  Defendant. 

A.  B.,  a  Minor,  by  E.  F.,  His  Next  Friend,  Plaintiff, 

v. 
C.  D.,  a  Minor,  Defendant. 

A.  B.,  Sheriff  of County,  Oklahoma,  Plaintiff, 

v. 
C.  D.,  Defendant. 

A.  B.,  C.  D.,  and  E.  F.,  Partners  as  B.,  D.  &  F.  Co.,  Plaintiffs, 

v. 
G.  H.  and  I.  J.,  Partners  as  H.  &  Co.,  Defendants. 

2  Rev.  Laws  1910,  §  4736. 

s  Rev.  Laws  1910,  §  4767. 

*  State  v.  City  of  Muskogee  (Okl.)  172  P.  796. 

s  Rev.  Laws  1910,  §  4768. 

HON.PL.&  PBAC.— 25  (385) 


§§  543-545  PLEADINGS  (Ch.  11 

A.  B.  C.  Company,  a  Corporation,  Plaintiff, 

v. 
C.  D.  Railroad  Co.,  a  Corporation,  Defendant. 

A.  B.,  Executor  of  the  Will  of  E.  F.,  Deceased,  Plaintiff, 

v. 
C.  D.,  Administrator  of  the  Estate  of  G.  H.,  Deceased,  Defendant. 

A.  B.,  as  Assignee  for  the  Benefit  of  the  Creditors  of  E.  F.,  Plaintiff, 

v. 
C.  D.,  Defendant. 

§  544.     Counties 

"In  all  suits  or  proceedings  by  or  against  a  county,  the  name  in 
which  a  county  shall  sue  or  be  sued  shall  be,  'Board  of  County 

Commissioners  of  the  County  of  ,'  but  this  provision  shall 

not  prevent  county  officers,  where  authorized  by  law,  from  suing 
in  their  official  name  fer  the  benefit  of  the  county."  8 


ARTICLE  II 

RULES  OF  PLEADING 

Sections 

545.  Former  rules  abolished. 

546.  What  must  be  pleaded. 

547.  Special  matters. 

548.  Estoppel. 

549.  Pleading    conclusions   and   law. 

550.  Pleading  evidence. 

551.  Uncertainty  in  pleadifcgs. 

552.  Pleading  in  the  alternative. 

553.  Pleading  by  reference. 

§  545.     Former  rules  abolished 

"The  rules  of  pleading  heretofore  existing  in  civil  actions  are 
abolished;  and  hereafter,  the  forms  of  pleadings  in  civil  actions 
in  courts  of  record,  and  the  rules  by  which  their  sufficiency  may 
be  determined,  are  those  prescribed  by  this  code."  T 

e  Rev.  Laws  1910,  §  1500. 
7  Rev.  Laws  1910,  §  4735. 

(386) 


Art.  2)  RULES  OF  PLEADING  §§  546~547 

« 

§  546.     What  must  be  pleaded 

It  is  not  necessary  to  plead  facts  of  which  the  court  will  take 
judicial  notice.8 

There  need  be  no  direct  allegation  of  a  fact  which  otherwise 
sufficiently  appears  or  of  facts  necessarily  implied  from  averments 
in  the  petition.9 

§  547.    Special  matters 

A  party  relying  on  the  defense  of  accord  and  satisfaction  must 
both  plead  and  prove  the  offer  and  acceptance  by  the  parties.10 

Where  the  transferee  of  a  note  desires  to  avoid  equities  as  be- 
tween the  original  parties,  he  must  plead  and  prove  that  the  note 
was  transferred  by  indorsement.11 

The  insurer  should  plead  and  prove  its  contention  that  insured's 


s  French  v.  State  Senate,  SO  P.  1031,  146  Cal.  604,  69  L.  R.  A.  556,  2  Ann. 
Cas.  756. 

By  chapter  98,  Laws  1893,  the  territory  formerly  known  as  "Garfield 
county,  Kansas,"  was  made  a  municipal  township  of  Finney  county  for  judi- 
cial purposes.  Held,  that  in  an  action  against  the  township  to  recover  upon 
indebtedness  created  by  the  county  the  de  facto  existence  of  the  county,  the 
existence  of  the  township  of  Garfield,  the  succession  of  the  township  to  the 
county,  and  the  liability  of  the  township  for  the  debts  of  the  county  are  facts 
of  which  the  court  will  take  judicial  notice,  and  need  not  be  pleaded.  Gar- 
field  Tp.  v.  Dodsworth,  58  P.  565,  9  Kan.  App.  752. 

9  That  a  minor  child's  earnings  have  been  relinquished  to  him  will  be  im- 
plied, in  an  action  brought  by  the  father  as  such,  and  as  next  friend  for  the 
minor,  for  damages  for  decreased  earning  power,  from  averments  in  the  peti- 
tion that  the  minor  is  entited  tc  recover  in  his  own  suit,  though  emancipa- 
tion of  the  minor  is  not  specifically  alleged,    Revel  v.  Pruitt,  142  P.  1019,  42 
Okl.  696. 

The  use  of  the  word  "fratfd"  in  stating  the  conduct  of  a  party  sought  to 
be  charged  for  false  representations  is  unnecessary  where  the  facts  stated  are 
sufficient  to  show  fraudulent  conduct  and  resulting  injury.  Way  v.  Bronston, 
138  P.  601,  91  Kan.  446. 

Where  a  petition  though  not  using  the  word  "dedication,"  alleges  facts 
showing  a  dedication  for  a  public  highway  by  conduct  of  the  owner  and  ac- 
ceptance and  user  by  the  public,  dedication  may  be  relied  on.  Kansas  City 
v.  Burke,  144  P.  193,  93  Kan.  236,  denying  rehearing  141  P.  562,  92  Kan.  531. 

In  an  action  by  a  partnership  an  allegation  of  compliance  with  Rev.  Laws 
1910,  §§  4469,  4471,  requiring  the  filing  of  a  certificate  of  the  names  of  the 
partners  where  a  fictitious  name  or  designation  is  used,  is  not  required,  as  it 
is  presumed  that  the  law  has  been  complied  with.  Oklahoma  Fire  Ins.  Co.  v. 
Wagester,  38  Okl.  291,  132  P.  1071. 

10  Deming  Inv.  Co.  v.  McLaughlin,  30  Okl.  20,  118  P.  380. 

11  Gault  v.  Kane,  44  Okl.  763,  145  P.  1128. 

(3S7) 


§§  547-548  PLEADINGS  (Ch.  11 

death  was  due  to  a  cause  excepted  from  the  accident  policy  sued 
on.1* 

When  an  action  is  brought  against  a  nonresident  of  the  state  in 
the  district  court,  which  is  a  court  of  general  jurisdiction,  it  is  not 
necessary  to  allege  in  the  petition  that  defendant  may  be  found  in 
the  county  where  the  action  is  brought,  or  that  he  has  property  in 
the  county.13 

§  548.    Estoppel 

Estoppel,  to  be  available  as  part  of  a  cause  of  action  or  defense, 
must  be  pleaded  with  particularity.14 

12  Union  Accident  Co.  v.  Willis,  44  Old.  578,  145  P.  812,  L.  R.  A.  1915D.  358. 

is  Bohart  v.  Republic  Investment  Co.,  30  P.  180,  49  Kan.  94. 

i4  Halsell  v.  First  Nat.  Bank  of  Muskogee,  48  Okl.  535,  150  P.  489,  L.  R.  A. 
1916B,  697;  Tonka wa  Milling  Co.  v.  Town  of  Tonkawa,  83  P.  915,  15  Okl. 
672 ;  Nance  v.  Oklahoma  Fire  Ins.  Co.,  31  Okl.  208,  120  P.  948,  38  L.  R.  A. 
(N.  S.)  426 ;  Halsell  v.  First  Nat.  Bank  of  Muskogee,  48  Okl.  535,  150  P.  489, 
L.  R.  A.  1916B,  697 ;  McKallip  v.  Geese,  30  Okl.  33,  118  P.  586 ;  Fidelity  Mut 
Life  Ins.  Co.  of  Philadelphia,  Pa.,  v.  Dean,  57  Okl.  84,  156  P.  304;  Cooper  v. 
Flesner,  103  P.  1016,  24  Okl.  47,  23  D.  R.  A.  (N.  S.)  1180,  20  Ann.  Gas.  29; 
Insurance  Co.  of  the  State  of  Pennsylvania  v.  Harris,  49  Okl.  165,  152  P.  359 ; 
Bunker  v.  Harding  (Okl.)  174  P.  749. 

A  waiver  relied  upon  as  an  estoppel  against  defendant  to  take  advantage 
of  a  breach  by  plaintiff  of  the  contract  sued  on  must  be  specially  pleaded. 
American  Jobbing  Ass'n  v.  James,  103  P.  670,  24  Okl.  460. 

For  an  estoppel  or  waiver  of  the  conditions  of  a  benefit  certificate  prohib- 
iting entering  on  hazardous  occupations  to  be  available  to  the  beneficiary,  it 
must  be  specifically  pleaded.  Modern  Woodmen  of  America  v.  Weekley,  139  P. 
1138,  42  Okl.  25. 

Waiver  of  conditions  of  policy,  to  be  available,  must  be  specifically  pleaded. 
Edwards  v.  Sovereign  Camp,  Woodmen  of  the  World,  61  Okl.  243,  161  P.  170. 

In  action  for  freight,  contract  of  consignor  and  consignee  as  to  payment  of 
freight  cannot  be  pleaded  as  defense,  in  absence  of  plea  raising  estoppel,  to 
which  such  contract  was  germane.  Indiana  Harbor  Belt  R.  Co.  v.  Britton,  56 
Okl.  750,  156  P.  894. 

The  town  council  of  an  incorporated  town  is  not  estopped  to  rely  on  the 
invalidity  of  an  ordinance  amending  another  ordinance  extending  the  time 
set  in  the  ordinance  amended  for  furnishing  gas  to  the  inhabitants  of  said 
town,  where  such  estoppel  is  not  pleaded,  and  the  evidence  fails  to  disclose 
that  the  grantee  of  said  franchise  or  its  assignee  was  misled  to  its  injury 
Town  of  Sapulpa  v.  Sapulpa  Oil  &  Gas  Co.,  97  P.  1007,  22  Okl.  347. 

In  action  to  subject  wife's  separate  property  to  payment  of  husband's  debts, 
facts  showing  her  estoppel  by  conduct  must  be  specifically  pleaded.  Farm- 
ers' State  Bank  of  Ada  v.  Keen  (Okl.)  167  P.  207. 

Estoppel  in  pais  against  maker  of  instrument  materially  altered,  to  be 
available,  must  be  pleaded.  Wayne  County  Nat.  Bank  v.  Kneeland,  61  Okl. 
265,  161  P.  193. 

(388) 


Art.  2)  RULES  OF  PLEADING  §§  548~549 

No  intendments  are  indulged  in  favor  of  a  plea  of  estoppel,  and 
every  essential  element  of  estoppel  must  be  averred.15 

If  the  facts  constituting  estoppel  are  in  any  way  sufficiently 
pleaded,  the  pleader  is  entitled  to  the  benefit  of  the  estoppel  though 
it  is  not  formally  pleaded.16 

§  549.     Pleading  conclusions  and  law 

It  is  neither  necessary  nor  sufficient  to  plead  mere  conclusions,17 
or  statements  of  law; 18  but  a  petition  is  not  demurrable,  though  it 

IB  Holt  v.  Holt,  102  P.  187,  23  Okl.  639. 

IB  Jones  v.  S.  H.  Kress  &  Co.,  54  OkL  194,  153  P.  655. 

17  Where  there  is  no  averment  of  facts  from  which  the  conclusions  of  law 
are  drawn,  the  same  will  have  no  force  in  a  pleading.  International  Har- 
vester Co.  of  America  v.  Cameron,  105  P.  189,  25  Okl.  256. 

"Where  the  petition  in  an  employees  action  for  injuries  states  facts  impl}'- 
ing  that  defendant  has  negligently  failed  to  provide  a  reasonably  safe  place 
to  work,  it  need  not  state  the  legal  conclusion  to  that  effect.  Barnett  v, 
United  Kansas  Portland  Cement  Co.,  139  P.  484,  91  Kan.  719. 

Conclusions. — The  allegation  that  county  commissioners  have  advertised 
for  bids,  and,  unless  interfered  with,  will  let  a  contract  for  a  bridge  at  a  cer- 
tain point  with  a  further  allegation  that  the  advertisement  for  the  contract 
has  not  as  they  verily  believe  been  posted  as  required  by  law,  is,  as  to  the 
latter,  a  statement  merely  of  a  legal  conclusion,  and  the  petition  based  there- 
on is  demurrable.  Smith  v.  Board  of  Com'rs  of  Rogers  County,  110  P.  669,  26 
Okl.  819. 

A  petition  in  ejectment  which  sets  forth  in  general  terms  the  fact  that  ille- 
gal interest,  penalties,  and  costs  were  charged  against  real  property  sold  for 
taxes,  and  the  deed  was  void  because  separate  school  taxes  were  assessed 
against  the  property,  and  that  a  special  tax  was  illegally  assessed  against  the 
property,  the  same  being  a  part  of  the  taxes,  interest,  and  expenses  for  which 
the  property  is  sold,  does  not,  on  demurrer,  state  facts  sufficient  to  raise  such 
questions;  it  being  necessary  to  show  wherein  the  tax  was  illegal  or  the  ex- 
penses illegally  charged.  Jones  v.  Carnes,  87  P.  652,  17  Okl.  470. 

An  allegation  that  a  certain  person  is  not  now,  and  never  has  been,  the 
legally  appointed  assignee  for  another  person,  is  a  mere  conclusion.  Smith 
v.  Kaufman,  41  P.  722,  3  Okl.  568. 

Defendant's  petition  to  vacate  judgment,  averring  that  he  has  a  good  de- 
fense, as  shown  by  his  answer  on  file  in  the  cause,  but  not  making  such  an- 
swer a  part  of  the  petition,  is  insufficient  as  stating  a  mere  legal  conclusion, 
Tracy  v.  State,  60  Okl.  109,  159  P.  496. 

The  allegation  of  a  petition  that  there  was  and  is  no  high  school  in  the 
county  which  has  been  established  or  created  according  to  law,  equivalent  to- 
the  allegation  that  the  high  school  established  was  illegal,  is  a  mere  conclu- 

is  A  statement,  in  a  petition  in  an  action  to  vacate  a  judgment,  which  al- 
leges that  no  publication  notice  as  required  by  law  has  been  filed,  is  a  state- 
ment of  law,  not  a  statement  of  fact.  Townsend  v.  Burr,  60  P.  477,  9  Kan. 
App.  810. 

(389) 


§§  549-551  PLEADINGS  (Ch.  11 

states  a  conclusion  of  the  pleader,  where  it  states  the  facts  on 
which  such  conclusion  is  based.19 

But  it  is  a  sufficient  allegation  of  facts,  if  a  petition  sets  forth 
such  facts  as  are  probative  with  reference  to  the  issue  to  be  estab- 
lished, and  it  is  unnecessary  to  set  out  the  evidentiary  facts.20 

§  550.     Pleading  evidence 

It  is  not  good  practice  to  plead  evidence  and  the  granting  of  a 
motion  to  strike  out  the  evidence  when  pleaded  will  not  be  dis- 
turbed.21 

In  an  action  by  a  wife  for  the  alienation  of  the.  affections  of  her 
husband,  a  statement  in  the  petition  of  the  ultimate  facts  of  the 
alienation  and  separation  is  enough  without  pleading  the  acts 
done  and  artifices  used  to  accomplish  the  result.22 

§  551.     Uncertainty  in  pleadings 

The  essential  facts  of  a  cause  of  action  or  defense  should  be  un- 
equivocally alleged.  Where  the  averments  of  the  pleading  are  con- 
ditional, contingent,  and  conjectural,  it  will  be  held  insufficient.23 

sion  of  law,  insufficient  against  direct  challenge  by  demurrer.  Houser  v. 
Smith,  101  P.  1001,  80  Kan.  260. 

An  answer  which  merely  denies  the  debt  sued  on,  without  denying  the  facts 
on  which  it  is  ba'sed,  where  they  are  pleaded  in  the  petition,  is  insufficient 
to  raise  an  issue  of  fact.  Jackson  v.  Green,  74  P.  502,  13  Okl.  314. 

Where  petition  alleges  injury  by  negligence  of  defendant,  a  part  of  an  an- 
swer, additional  to  a  general  denial,  merely  stating  that  the  act  of  defendant 
was  rightful,  is  demurrable.  Murray  v.  Empire  Dist.  Electric  Co.,  150  P.  533, 
96  Kan.  336. 

In  action  against  city  for  personal  injury,  from  alleged  unsafe  condition  of 
street  or  sidewalk,  a  general  allegation  "that  the  plaintiff's  negligence  caused 
the  injury"  was  a  mere  conclusion,  and  not  a  sufficient  allegation  of  contrib- 
utory negligence.  City  of  Gushing  v.  Bowdlear  (Okl.)  177  P.  561. 

i»  Maple  v.  State,  142  P.  1182,  43  Okl.  277. 

Statements  of  fact. — In  a  reply  attacking  tax  deeds  alleging  that  they  fail 
to  show  the  date  of  sale,  that  the  notice  of  sale  does  not  show  by  whom  it 
was  made  or  the  place  of  sale,  and  other  specifications  of  fact,  a  statement 
that  no  notice  of  final  redemption  was  published  as  required  by  law  will  be 
regarded  as  a  statement  of  fact.  Wolf  v.  Wolf,  128  P.  374,  88  Kan.  205. 

20  City  of  Guthrie  v.  Finch,  75  P.  288,  13  Okl.  496. 

21  Cahill  v.  Pine  Creek  Oil  Co.,  136  P.  1100,  40  Okl.  176. 

22  White  v.  White,  90  P.  1087,  76  Kan.  82. 

as  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Atchison  Grain  Co.,  70  P.  933,  judgment 
modified  (1904)  75  P.  1051,  68  Kan.  585,  1  Ann.  Cas.  639. 

A  pleading  should  contain  a  positive  statement  of  essential  facts;  and  it 
must  be  held  insufficient  where  it  merely  states  that  such  facts  are  alleged 
to  exist.  Byington  v.  Saline  County  Com'rs,  16  P.  105,  37  Kan.  654. 

(390: 


Art.  3)          RULES  FOR  CONSTRUING  PLEADINGS      §§  551~554 

The  allegations  in  a  petition  should  be  sufficiently  certain  to 
enable  the  court  to  understand,  not  only  the  wrongs  complained 
of,  but  also  the  correct  measure  of  redress.24 

Essential  facts  necessary  to  be  shown  to  entitle  a  party  to  the 
relief  demanded  should  be  stated  in  the  pleadings  by  allegation 
or  averment,  and  not  by  way  of  recital.25 

§  552.     Pleading  in  the  •alternative 

An  alternative  statement  of  facts,  under  either  of  which  the  op- 
posite party  would  be  liable,  may  be  pleaded,  where  it  is  impossi- 
ble for  the  pleader  to  know  which  of  such  statements  are  true.26 

§  553.     Pleading  by  reference 

Allegations  in  another  pleading  in  the  same  case  may  be  made 
a  part  of  a  pleading  by  reference  thereto  and  adoption  thereof.27 

ARTICLE  HI 

RULES  FOR  CONSTRUING  PLEADINGS 

Sections 

554.  Liberal  construction. 

555.  General    and  specific  allegations. 

556.  Admissions. 

557.  Presumptions. 

558.  Surplusage. 

559.  Construction  against  pleader. 

560.  Construing  allegations  together. 

561.  Construed  as  of  what  time. 

§  554.     Liberal  construction 

"In  the  construction  of  any  pleading,  for  the  purpose  of  deter- 
mining its  effect,  its  allegations  shall  be  liberally  construed;  with 
a  view  to  substantial  justice  between  the  parties."  28 

24  Midland  Valley  R.  Co.  v.  Featherstone,  123  P.  1123,  32  Okl.  837. 

25  Emmerson  v.  Botkin,  109  P.  531,  26  Okl.  218,  29  L,  R.  A.  (N.  S.)  786,  138 
Am.  St.  Rep.  953. 

26  Where  an  employe1  is  injured,  either  by  the  willful  or  intentional  act  of 
the  employer,  or  the  failure  to  exercise  ordinary  care  on  the  part  of  such  em- 
ployer, such  employ6  or  his  representative  may  plead  both  in  the  alternative 
in  one  count.     Chicago,  R.  I.  &j  P.  Ry.  Co.  v.  Mclntire,  119  P.  1008,  29  Okl. 
797. 

-7  In  action  on  notes,  where  answer  and  cross-petition  set  out  execution 
and  transfer  of  notes  secured  by  chattel  mortgage,  the  reply  might  refer  to 
such  allegation  in  cross-petition,  and  thereby  make  them  a  part  of  the  reply. 
Lower  v.  Shorthill,  103  Kan.  534,  176  P.  107. 

28  See  note  28  on  following  page. 

(391) 


"§    554  PLEADINGS  (Ch.  11 

Where  the  allegations  of  a  petition  clearly  show  that  the  plain- 
tiffs have  no  adequate  remedy  at  law,  it  is  unnecessary  to  so  al- 
lege.28 

Under  this  statute  averments  of  pleadings  must  be  so  construed 
that  substantial  justice  may  be  done  between  the  parties  though  es- 
sential averments  lacking  in  a  pleading  need  not  be  construed  into 
it,  or  a  necessary  averment  be  supplied,  unless  it  must  necessarily 
be  inferred  from  other  pleadings.30 

A  pleading  will  not  be  construed  so  as  to  defeat  it  by  undue 
technicality.31  It  will  be  liberally  construed  on  objection  to  the  in- 
troduction of  any  evidence,32  and  on  a  demurrer  to  the  evidence,33 

^8  Rev.  Laws  1910,  §  4766;  Bank  of  Glasco  v.  Marshall,  47  P.  561,  5  Kan. 
App.  252. 

An  allegation,  in  an  employe's  action  for  injuries,  that  defendant  knew  or 
should  have  known  of  a  certain  defect  was  an  implied  allegation  that  such 
defect  existed.  Roberts  v.  Pendleton,  142  P.  289,  92  Kan.  847. 

After  a  party  has  amended  his  petition  three  times,  and  a  demurrer  is 
again  sustained  to  it,  no  presumption  will  be  indulged  in  favor  of  the  plead- 
ing. Schilling  v.  Moore,  125  P.  487,  34  Okl.  155. 

29  Clark  v.  Frazier  (Okl.)  177  P.  589. 

soWeatherly  v.  Sawyer,  63  Okl.  155,  163  P.  717;  Emmerson  v.  Botkin,  109 
P.  531,  26  Okl.  218,  29  L.  R.  A.  (N.  S.)  786,  138  Am.  St.  Rep.  953. 

si  Smith  v.  McCarthy,  18  P.  204,  39  Kan.  308. 

*2  Against  an  objection  to  the  introduction  of  any  evidence  for  plaintiff  on 
the  ground  that  the  petition  does  not  state  a  cause  of  action,  the  petition  will 
be  liberally  construed,  and,  if  possible,  sus-tained.  State  v.  School  District 
No.  3,  8  P.  208.  34  Kan.  237 ;  Burnette  v.  Elliott,  84  P.  374,  72  Kan.  624 ; 
Simmonds  v.  Richards,  86  P.  452,  74  Kan.  311;  Mills  v.  Vickers,  50  P.  976, 
6  Kan.  App.  884 ;  Carr  v.  Seigler,  52  Okl.  485,  153  P.  141 ;  McKee  v.  Jolly 
(Okl.)  178  P.  656;  Minnetonka  Oil  Co.  v.  Cleveland  Vitrified  Brick  Cp.,  48 
Okl.  745,  150  P.  712 ;  Barker  v.  Moodie,  141  P.  562,  92  Kan.  566. 

33  Gregg  v.  Oklahoma  State  Bank  (Okl.)  179  P.  613. 

Allegations  of  fraud  and  consequent  damage  in  procuring  credit  for  insol- 
vents, when  tested  by  demurrer,  are  to  be  liberally  construed.  Blair  v.  Mc- 
Quary,  162  P.  1173,  100  Kan.  203,  judgment  modified  on  rehearing  164  P.  262, 
100  Kan.  203. 

The  allegations'  of  a  petition,  challenged  by  a  general  demurrer  or  objection 
to  the  introduction  of  evidence,  based  upon  the  insufficiency  of  the  petition, 
must  be  construed  liberally  in  favor  of  the  pleader.  Ruby  v.  Warrior  (Okl.) 
175  P.  355. 

In  a  suit  for  annulment  of  a  marriage,  an  allegation  that  the  wife  had  not 
been  divorced  from  a  former  husband  will  be  construed  on  demurrer  to  mean 
that  the  husband  was  still  living.  Browning  v.  Browning,  130  P.  852,  89  Kan. 
98,  L.  R.  A.  1916C,  737,  Ann.  Cas.  1914C,  1288. 

Where  a  contract  is  pleaded  which  is  open  to  two  interpretations,  one  that 
the  contracting  parties  were  honest  and  innocent  in  their  purposes  and  ac- 


Art.  3)          RULES  FOR  CONSTRUING  PLEADINGS      §§  554~555 

particularly  where  no  motion  to  make  more  definite  and  certain  lias 
been  made,34  but  doubtful  language  will  be  construed  against  the 
pleader.85 

If  material  allegations  are  omitted,  it  will  be  assumed,  without 
application  to  amend,  that  facts  to  justify  them  do  not  exist.36 

A  petition  attacked  for  the  first  time  on  appeal  on  the  ground  that 
it  does  not  state  facts  sufficient  to  constitute  a  cause  of  action  will 
be  liberally  construed.37 

The  same  is  true  of  a  counterclaim.88 

§  555.     General  and  specific  allegations 

A  specific  statement  of  facts  in  a  pleading  will  always  control  a 
general  statement,  whether  that  general  statement  is  or  is  not  re- 
garded as  a  mere  conclusion  of  law.39 

tions,  and  the  other  that  they  were  immoral  and  criminal,  and  the  sufficiency 
of  the  pleading  is  challenged  on  demurrer,  an  interpretation  will  be  given  in 
favor  of  honesty  and  innocence,  and  which  will  uphold  the  validity  of  the- 
contract  and  the  sufficiency  of  the  pleading.  Atchison,  T.  &  S.  F.  Ry.  Co.  v. 
Atchison  Grain  Co.,  70  P.  933,  judgment  modified  75  P.  1051,  68  Kan.  585,  I 
Ann.  Cas.  639. 

s*  vVhere  a  demurrer  is  filed  to  a  petition  on  the  ground  that  it  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action,  without  first  presenting  a 
motion  to  have  the  allegations  of  the  petition  made  more  definite  and  cer- 
tain, the  statements  of  such  petition  will  be  liberally  construed  in  favor  of 
the  pleader.  Upham  v.  Head,  85  P.  1017,  74  Kan.  17;  Balmer  v.  Long,  104 
Kan.  408,  179  P.  371. 

as  Lusk  v.  Porter,  53  Okl.  294,  156  P.  224;  Atwood  v.  Rose,  122  P.  929,  32 
Okl.  355. 

After  a  motion  to  make  certain  allegations  of  a  petition  more  definite  and 
certain  has  been  overruled,  such  pleading  in  respect  to  such  allegations  can- 
not be  upheld  as  against  a  general  demurrer,  unless  it  fairly  states  a  cause 
of  action  without  resort  to  inferences  or  construction  of  doubtful  language. 
Mergen  v.  Salina  Northern  R.  Co.,  104  Kan.  811,  180  P.  736. 

se  Fretz  v.  City  of  Edmond  (Okl.)  168  P.  800,  L.  R.  A.  1918C,  405. 

3?Wass  v.  Tennent-Stribbling  Shoe  Co.,  41  P.  339,  3  Okl.  152?  Hoehler  v, 
Short,  140  P.  146,  40  Okl.  681 ;  Cook  v.  State,  130  P.  300,  35  Okl.  653 ;  Mis<- 
souri  Pac.  Ry.  Co.  v.  Morrow,  13  P.  789,  36  Kan.  495;  Kansas  City  &  S.  W. 
Ry.  Co.  v.  Farnsworth,  18  P.  202,  39  Kan.  356. 

ss  Where  the  sufficiency  of  the  counterclaim  is  not  challenged  below,  and 
the  evidence  taken  thereon  is  not  in  the  record,  a  judgment  for  defendant  will 
not  be  disturbed  because  the  averments  of  the  counterclaim  would  have  been 
subject  to  a  motion  to  make  more  definite  and  certain.  Brown  Shoe  Co.  v. 
Cuff,  132  P.  1090,  37  Okl.  776. 

3»  Whi taker  v.  Crowder  State  Bank,  110  P.  776,  26  Okl.  786, 

A  petition  containing  general  averments  of  negligence,  and  stating  that  the 
negligence  "hereinbefore  complained  of  consisted  in  this,"  presents  only  such- 

(393) 


§    556  PLEADINGS  (Ch.  11 

§  556.     Admissions 

Where  a  party  to  an  action  makes  solemn  admissions* against  his 
interest  in  a  pleading  in  the  absence  of  mistake  on  his  part,  or  on 
the  part  of  his  counsel  who  inserted  them  in  such  pleading,  a  court, 
in  passing  on  the  sufficiency  of  a  subsequent  amended  pleading  filed 
by  him  should  take  such  admissions  into  consideration,  and  treat 
them  as  admitted  facts  in  the  case.40 

A  party  should  be  bound  by  the  allegations  of  his  pleadings,  de- 
liberately made,  and  should  not  be  allowed  to  obtain  benefits  from 


issues  as  are  found  in  the  specific  allegations.  Chicago,  R.  I.  &  P.  Ry.  Co.  v. 
Mclntire,  119  P.  1008,  29  Old.  797. 

In  suit  by  abutting  owner  to  enjoin  ferry  landing  at  end  of  public  highway, 
general  allegations  that  he  would  suffer  irreparable  injury  unless  landing  is 
enjoined  were  negatived  by  his  more  specific  allegations  showing  that  relief 
was  based  upon  mere  fact  of  such  landing.  Hale  v.  Record  (Okl.)  168  P.  420. 

Where  a  petition  sets  out  a  specific  title  followed  by  a  general  averment  of 
ownership,  it  will  be  understood  that  this  general  averment  refers  to  the  spe- 
cific title,  and  the  testimony  will  be  limited  to  such  title.  Armour  Bros. 
Banking  Co.  v.  Riley  County  Bank,  1  P.  506,  30  Kan.  163. 

40  Lane  Implement  Co.  v.  Lowder,  65  P.  926,  11  Okl.  61. 

Where  a  party  to  an  action  makes  solemn  admissions  against  his  interest 
in.  a  pleading,  they  must  be  treated  as  admitted  facts,  and  he  cannot  question 
the  correctness  thereof  in  the  trial  court  or  on  appeal  so  long  as  they  remain 
a  part  of  the  record.  Rogers  v.  Brown,  86  P.  443,  15  Okl.  524. 

Where,  in  an  action  for  injury  to  a  shipment  of  live  stock,  plaintiff  alleged 
that  defendant  issued  bills  of  lading,  he  cannot  thereafter  claim  that  the  con- 
tract of  shipment  was  oral,  though  in  his  reply  he  alleged  that  the  bills  of 
lading  were  executed  as  a  receipt  and  for  the  purpose  of  entitling  plaintiff 
to  return  transportation.  St.  Louis  &  S.  F.  R.  Co.  v.  Zickafoose,  39  Okl.  302. 
135  P.  406. 

One  who  brought  an  action  to  cancel  a  deed  on  the  ground  that  it  was  pro- 
cured by  fraud,  and  who  prays-  an  accounting  with  her  grantee  for  moneys 
received  for  lots  sold  from  land,  cannot,  at  the  conclusion  of  the  trial,  aban- 
don that  theory  and  insist  that  the  deed  be  deemed  a  mortgage,  and  recover 
the  title  to  the  lots  from  parties  held  to  be  innocent  purchasers  for  value,  and 
without  notice.  Herbert  v.  Wagg,  117  P.  209,  27  Okl.  674. 

In  action  for  specific  performance  against  a  foreign  executor,  if  the  exec- 
utor plead  the  will  to  show  that  it  contains  no  grant  of  power  to  convey,  he 
cannot  dispute  its  existence,  authenticity,  or  terms.  Niquette.v.  Green,  106 
P.  270,  81  Kan.  569. 

In  an  action  of  replevin  against  an  officer  to  recover  cattle  levied  upon  by 
him,  wherein  the  defendant  answers,  admitting  possession,  and  justifies  un- 
der a  writ  of  execution,  and  denies  the  ownership  of  the  plaintiff,  it  is  error 
to  permit  him  to  prove  that  he  was  not  in  possession  of  the  property  at  the 
commencement  of  the  suit.  Hursh  v.  Starr,  49  P.  618,  6  Kan.  App.  8. 

(394) 


Art.  3)          RULES  FOR  CONSTRUING  PLEADINGS       §§  556~558 

contradictory  and  inconsistent  allegations  therein,  even  if  made  in 
separate  counts.41 

Allegations  in  a  petition  which  have  been  superseded  by  an 
amended  petition  complete  within  itself  and  not  referring  to  the 
original  petition  are  not  conclusive  upon  plaintiff.42 

When  the  prayer  of  a  petition  asks  for  interest  from  a  certain 
date,  the  plaintiff  cannot  recover  interest  from  a  prior  date.43 

If  allegations  in  the  answer  are  inconsistent  with  each  other,  the 
defendant  is  bound  by  those  allegations  which  are  against  him- 
self.44 

Where  a  copy  of  the  note  sued  on  is  attached  to  the  petition,  and 
defendants  admit  the  execution  thereof,  they  cannot,  on  the  intro- 
duction of  evidence,  be  heard  to  say  that  the  note  was  changed  after 
its  execution,  as  the  admission  is  of  the  execution  of  the  note  in 
the  very  form  pleaded.45 

§  557.     Presumptions 

Considerable  latitude  of  presumption  is  allowed  in  sustaining  a 
petition,  where  issue  is  joined,  and  it  is  only  attacked  at  the  trial  by 
an  objection  to  evidence.46 

Where  a  petition  avers  facts  of  a  continuous  nature  which  would 
preclude  recovery,  they  will  be  presumed  to  continue  unless  the  pe- 
tition avers  the  contrary.47 

§  558.     Surplusage 

Where  a  pleading,  which  is  otherwise  good,  contains  allegations 
which  are  not  essential,  such  allegations  may  be  disregarded*  as  sur- 
plusage.48 

41  Losch  v.  Pickett,  12  P.  822,  36  Kan.  216. 

42  Letcher  v.  Maloney  (Okl.)  172  P.  972;    Reemsnyder  v.  Reemsnyder,  89  P. 
1014,  75  Kan.  565. 

43  Phenix  Ins.  Co.  of  Brooklyn  r.  Weeks,  26  P.  410,  45  Kan.  751. 

44  Mitchell  v.  Ripley,  49  P.  153,  5  Kan.  App.  818;   Bierer  v.  Fretz,  4  P.  284, 
32  Kan.  329. 

45  White  v.  Smith,  98  P.  766,  79  Kan.  96. 

46  Burnette  v.  Elliott,  84  P.  374,  72  Kan.  624. 
*7  Alexander  v.  Bobier  (Okl.)  166  P.  716. 

48  Where  the  facts  are  fully  set  out  in  a  petition,  and  are  followed  by  a 
formal  statement  of  the  pleader's  conclusions,  such  conclusions,  if  erroneous, 
may  be  disregarded  as  surplusage.  Lawton  Pressed  Brick  &  Tile  Co.  v.  Ross- 

(395) 


§§  558-560  PLEADINGS  (Ch.  11 

The  court  may,  in  its  discretion,  order  such  matters  stricken  out, 
but  such  surplusage  will  not  render  a  pleading  subject  to  demur- 
rer.*9 

§  559.     Construction  against  pleader 

Any  pleading  containing  allegations  made  by  the  same  party, 
both  affirming  and  denying  a  particular  thing,  carries  falsehood  up- 
on its  face ;  and  in  such  a  case  the  court  may  consider  as  true  such 
of  the  allegations  as  are  against  the  pleader.50 

When  the  petition  states  a  number  of  causes  of  action,  and  asks 
for  a  variety  of  relief,  thereby  comprising  several  of  the  pre-existing 
forms  of  action,  its  language  will,  on  demurrer,  be  construed  against 
the  pleader.61 

§  560.     Construing  allegations  together 

In  determining  whether  any  one  or  more  of  the  counts  of  a  peti- 
tion state  a  good  cause  of  action,  all  the  facts -stated  will  be  consid- 
ered together.52 

/ 

Kellar  Triple  Pressure  Brick  Mach.  Co.,  124  P.  43,  33  Okl.  59,  49  L.  R.  A. 
<N.  S.)  395. 

Allegation  of  the  answer  that  insurer  had  fraudulently  misrepresented  in 
her  proof  of  loss  the  value  of  the  property  was  put  in  issue  by  general  denial ; 
and  further  allegations  in  the  reply,  as  to  waiver  of  conditions  of  the  policy, 
were  surplusage,  and  did  not  constitute  a  material  variance.  American  Ins. 
€o.  of  Newark,  N.  J.,  v.  Rodenhouse,  128  P.  502,  36  Okl.  211. 

Where  the  answer  alleges  that  insured  has  failed  to  comply  with  conditions 
precedent  to  an  action,  a  denial  of  those  allegations  in  the  reply  puts  them 
in  issue;  and  a  further  allegation  that  defendant  has  waived  the  conditions 
is  surplusage.  Rochester  German  Ins.  Co.  of  Rochester,  N.  Y.,  v.  Rodenhouse, 
128  P.  508,  36  Okl.  378. 

Where  a  petition  in  an  action  for  wrongful  ejection  of  a  passenger  from  a 
train  alleged  a  violation  of  the  contract  of  carriage,  and  also  tortious  acts 
of  the  conductor,  the  latter  allegations  may  be  treated  as  surplusage.  Chase 
v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  79  P.  153,  70  Kan.  546. 

Allegation  in  petition  that  notice  of  injury  had  been  given,  as  required  by 
the  fellow  servant  act  (Gen.  St.  1909,  §  6999) ,  is  'surplusage,  where  the  neg- 
ligence claimed  is  that  of  the  master  in  failing  to  exercise  proper  care  in 
furnishing  the  servant  with  a  safe  place  in  which  to  work.  Young  v.  Mis- 
souri, K.  &  T.  Ry.  Co.,  108  P.  99,  82  Kan.  332. 

49  Drake  v.  First  Nat.  Bank  of  Ft.  Scott,  33  Kan.  634,  7  Pac.  219. 

BO  Losch  v.  Pickett,  12  P.  822,  36  Kan.  216. 

si  Thomas  v.  Sweet,  14  P.  545,  37  Kan.  183. 

62  McClung  v.  Cullison,  82  P.  499,  15  Okl.  402. 

(396) 


Art.  4)  PETITION  §§  561-562 

§  561.     Construed  as  of  what  time 

The  pleadings  all  relate  to  the  time  of  the  commencement  of  the 
suit,  the  same  as  if  filed  at  that  time,  and  the  rights  of  the  parties 
are  to  be  determined  as  they  existed  when  suit  was  commenced.63 


ARTICLE  IV 

PETITION 

Sections  DIVISION  I.—  IN  GENERAL 

562.  Copy  for  defendant. 

DIVISION  II.—  CONTENTS,  FORM,  AND  CONSTBUCTION 

563.  Contents. 

564.  Designation  of  parties. 

565.  Of  unknown  defendant. 

566.  Necessary  allegations. 

567.  Presumptions  —  Judicial  notice. 

568.  Judgment  —  Form.  t 
569-     Form  and  manner  of  allegations. 

570.  Election. 

571.  Contractual    conditions    precedent  —  Form. 

572.  Instrument  for  payment  of  money  —  Private   statute  —  Form. 
573-  Libel  or  slander  —  Form. 

574.  Construction  a*nd  operation. 

575.  Requisites  and  sufficiency. 

576.  Fraud  —  Form. 

577.  Limitations  —  Form. 

578.  Matters  necessary  to  be  pleaded. 

579.  Forms  —  Petitions. 

DIVISION  III.—  JOINDER,  SPLITTING,  CONSOLIDATION,  AND  SEVERANCE 

580.  Joinder  —  Forms  of  motions. 

581.  Separately  stating   and   numbering. 

582.  Where  demurrer  sustained. 

583.  Splitting. 

584.  Consolidation. 

585.  Order—  Forms. 

DIVISION  IV.—  EXHIBITS  AND  PRAYER 

586.  Exhibits. 

587.  Prayer. 

DIVISION  I.  —  IN 


§  562.     Copy  for  defendant 

"A  copy  of  the  petition  need  not  accompany  the  summons,  but 
the  defendant  or  plaintiff  shall  be  entitled  to  a  copy  of  the  petition, 

53  Brown  v.  Galena  Mining  &  Smelting  Co.,  4  P.  1013,  32  Kan.  528. 

(397) 


§§  563-565  PLEADINGS  (Ch.  11 

or  any  other  paper  filed  in  the  action,  upon  application  to' the  clerk 
therefor;  and  the  cost  of  such  copy  shall  be  taxed  among  the  costs 
in  the  action."  B*  ' 


DIVISION  II. — CONTENTS,  FORM,  AND  CONSTRUCTION 

§  563.     Contents 

"The  petition  must  contain: 

"First.  The  name  of  the  court,  and  the  county  in  which  the  ac- 
tion is  brought,  and  the  names  of  the  parties,  plaintiff  and  defend- 
ant, followed  by  the  word  'petition.' 

"Second.  A  statement  of  the  facts  constituting  the  cause  of  ac- 
tion, in  ordinary  and  concise  language,  and  without  repetition. 

"Third.  A  demand  of  the  relief  to  which  the  party  supposes 
himself  entitled.  If  the  recovery  of  money  be  demanded,  the 
amount  thereof  shall  be  stated;  and,  if  interest  thereon  be  claim- 
ed, the  time  from  which  interest  is  to  be  computed  shall  also  be 
stated."  B5 

"In  any  action  for  the  recovery  of  real  property,  it  shall  be  de- 
scribed with  such  convenient  certainty  as  will  enable  an  officer 
holding  an  execution  to  identify  it."  56 

§  564.     Designation  of  parties 

The  omission  of  the  names  of  the  parties  is  not  a  fatal  defect, 
where  they  are  set  out  in  the  title.57 

§  565.     Of  unknown  defendant 

"When  the  plaintiff  shall  be  ignorant  of  the  name  of  a  defend- 
ant, such  defendant  may  be  designated,  in  any  pleading  or  pro- 
ceeding, by  any  name  or  description,  and  when  his  true  name  is 
discovered,  the  pleading  or  proceeding  may  be  amended  accord- 
ingly. The  plaintiff,  in  such  case,  must  state  in  his  petition  that  he 
could  not  ascertain  the  true  name;  and  the  summons  must  contain 

s*  Rev.  Laws  1910,  §  4704. 
55  Rev.  Laws  1910,  §  4737. 

Where  a  petition  contains  all  the  statutory  requirements,  it  states  a  cause 
of  action.    Kemper  v.  Lord,  49  P.  638,  6  Kan.  App.  64. 
66  Rev.  Laws  1910,  §  4778. 
BT  Scott  v.  Vulcan  Irori  Works  Co.,  122  P.  186,  31  Okl.  334. 

(398) 


Art.  4)  PETITION  §§  566-568 

the  words,  'real  name  unknown/  and  a  copy  thereof  must  be  serv- 
ed personally  upon  the  defendant."  58 

§  566.     Necessary  allegations 

Every  fact  necessary  to  be  proven  to  entitle  the  plaintiff  to  re- 
cover must  be  averred  in  his  pleadings.59 

§  567.     Presumptions — Judicial  notice 

"Neither  presumptions  of  law  nor  matters  of  which  judicial  no- 
tice is  taken,  need  be  stated  in  the  pleading."  60 

§  568.    Judgment — Form 

"In  pleading  a  judgment,  or  other  determination  of  a  court  or 
officer  of  special  jurisdiction,  it  shall  be  sufficient  to  state  that  such 
judgment  or  determination  was  duly  given  or  made;  and  the  ju- 
risdiction of  any  such  court  or  officer  shall  be  presumed  until  the 
contrary  appears."  61 


PETITION  IN  ACTION  ON  JUDGMENT 

(Caption.) 

Comes  now  the  plaintiff  and  for  cause  of  action  shows  to  the 
court : 

1.  That  it  is  and  at  all  times  hereinafter  mentioned  was  a  cor- 
poration duly  created,  organized  and  existing  under  the  laws  of 

the  state  of  and  having  its  principal  office  and  place  of 

business  in and  in  said  state. 

2.  That  the  defendant  is  and  at  all  times  hereinafter  mentioned 
was  a  corporation  duly  created,  organized  and  existing  under  the 
laws  of  the  state  of  —      -  and  having  a  principal  office  and  place 
of  business  in  the  city  and  county  of  in  the  state  of  Ok- 
lahoma. 


ss  Rev.  Laws  1910,  §  4794. 

B9  Choctaw,  O.  &  G.  R.  Co.  v.  Zwirte,  73  P.  941,  13  Okl.  411. 

«o  Rev.  Laws  1910,  §  4781. 

The  word  "alley,"  used  by  itself  in  a  petition  in  connection  with  the  streets 
of  a  town,  will  be  deemed  a  public  way,  unless  prefixed  by  the  word  "pri- 
vate." Bellevue  Gas  &  Oil  Co.  v.  Carr,  61  OkL  290,  161  P.  203. 

si  Rev.  Laws  1910,  §  4772. 

*  (399) 


§    568  PLEADINGS  (Ch.  11 

3.     That  on  or  about  the day  of  ,  19 — ,  plaintiff 

duly  commenced  an  action  against  the  defendant  in  the  — 

court  of  the  state  of ;   that  said  court  was  and  is  a  court  of 

record  and  of  general  jurisdiction  duly  created  by  the  laws  of  said 
state,  and  had  jurisdiction  of  said  cause  and  of  the  parties,  thereto ; 
that  on  said  date  summons  was  duly  issued  therein  to  said  de- 
fendant which  summons  with  a  copy  of  the  complaint  in  said  ac- 
tion was  duly  served  on  the  defendant  in  said  state  on  the  - 

day  of ,  19 — ;  that  return  of  service  was  duly  made  and  the 

original  summons  and  complaint  in  said  action  were  filed  in  the 

office  of  the  clerk  of  said  court  on  the  day  of ,  19 — ; 

that  thereafter  and  on  the day  of ,  19 — ,  the  defend- 
ant duly  answered  said  complaint  and  set  up  a  counterclaim 
against  the  plaintiff,  which  answer  and  counterclaim  were  filed  in 
the  office  of  said  clerk  on  said  last  mentioned  date;  that  thereaft- 
er the  plaintiff  duly  made  reply  to  the  answer  and  counterclaim 
of  the  defendant,  which  reply  was  duly  filed  in  the  office  of  said 

clerk  on  the day  of ,  19 — ;  that  said  cause  duly  came 

on  for  trial  in  the circuit  of  said  court,  and  was  tried  on 

the day  of ,  19 — ,  at  which  trial  the  jury  rendered  a 

verdict  against  the  defendant   and  for  the  plaintiff  for  $ , 

which  verdict  was  certified  by  the  presiding  judge  of  said  court 

by  postea  filed  in  the  office  of  the  said  court  on  -  , 

19 — ;  that  thereupon  said  court  duly  and  regularly  ordered  judg- 
ment with  costs  upon  said  postea  by  order  entered ,  19 — ; 

that  thereafter  and  on  ,  19 — ,  judgment  was  duly  rendered 

in  said  court  in  favor  of  the  plaintiff  and  against  the  defendant  for 

the  said  sum  of dollars,  with  costs  taxed  at dollars, 

making  a  total  judgment  so  entered  of  dollars ;    that  said 

judgment  remains  in  said  court'in  full  force  and  effect  and  unsatis- 
fied and  unreversed,  and  no  part  of  said  judgment  has  been  paid 
but  the   same  and  all   thereof   remains   due,  owing   and   payable 
from  the  defendant  to  the  plaintiff  together  with  interest  at  — 
per  cent,  per  annum  from  the  said  day  of ,  19 — . 

That  a  complete  exemplified  copy  of  the  summons,  complaint, 
return  of  service,  answer  and  counterclaim,  reply,  postea,  order 
for  judgment,  and  final  judgment  in  the  said  action,  duly  exempli- 
fied under,  the  act  of  Congress  appertaining  thereto  by  , 

(400) 


Art.  4)  PETITION  §§  568-569 

clerk,  and  the  Honorable  ,  Chief  Justice  of  said  court,  are 

attached  hereto  and  made  a  part  hereof  and  marked  Exhibit  A. 

Wherefore  plaintiff  demands  judgment  against  the  defendant 

for  the  sum  of dollars,  with  interest  thereon  at  the  rate  of 

per  cent,  per  annum  from ,  19 — ,  and  for  his  costs  of 

this  action.  X.  Y.,  Attorney  for  Plaintiff. 

(Verification.) 

(Attach  exhibits.) 

§  569.     Form  and  manner  of  allegations 

Common-law  forms  of  action  have  been  abolished  by  statute  in 
this  state,  but  common-law  causes  of  action  have  not  been  abolish- 
ed, and  under  the  Code  the  plaintiff  need  only  state  the  facts  con- 
stituting his  cause  of  action  in  ordinary  and  concise  language  with- 
out repetition.62 

A  pleading  need  not  state  facts  to  bring  the  cause  under  any 
particular  form  of  action,  but  is  sufficient  if  it  clearly  states  facts 
from  which  the  court  may  see  that  plaintiff  is  entitled  to  relief.63 

62Eggleston  \\  Williams,  30  Okl.  j2P,  120  P.  944. 

63  Kee  v.  Satterfleld,  46  Okl.  660,  149  P.  243. 

It  is  not  necessary  that  the  petition  should  contain  a  statement  of  facts, 
stated  in  such  manner  as  would  have  been  necessary  to  entitle  the  plaintiff 
to  a  recovery  under  any  particular  form  of  action  prior  to  the  adoption  of  the 
Code.  It  is  sufficient  if  such  facts  are  alleged  as  show  a  legal  or  equitable 
right  to  a  recovery  by  the  plaintiff  against  the  defendant  under  the  general 
principles  of  law  or  equity  determining  the  rights  of  parties.  Hawkins  v. 
Overstreet,  54  P.  472,  7  Okl.  277. 

A  petition  that  alleged  that  the  plaintiff  was  induced  by  the  fraudulent  and 
untruthful  misrepresentations  of  the  defendant  to  buy  from  him  and  pay  for 
the  capital  stock  of  a  corporation,  the  same  being  utterly  valueless,  and  that 
the  defendants  knew  at  the  time  they  made  the  representations  of  the  un- 
truthfulness  thereof,  and  that  the  plaintiff,  relying  upon  such  statements, 
parted  with  his  money,  and  bought  stock,  states  but  one  cause  of  action 
sounding  in  tort;  and  it  was  error  for  the  court,  upon  demurrer  being  pre- 
sented by  the  defendants  to  the  evidence  of  the  plaintiff  in  support  thereof, 
to  require  the  plaintiff  to  state  or  say  by*  what  common-law  name  be  denom- 
inated his  cause  of  action.  Freeman  v.  TricKett,  49  P.  672,  6  Kan.  App.  83. 

A  petition  alleging  facts  showing  that  plaintiff  had  been  wronged  by  de- 
fendant, and  what  such  wrong  consisted  in,  and  the  amount  of  damages,  and 
that  defendant  was  liable  therefor,  and  asking  judgment  for  such  amount, 
states  a  cause  of  action  under  the  rules  of  Code  pleading  and  Rev.  Laws 
1910,  §  4737,  relative  thereto.  Smith  v.  Gardner,  131  P.  538,  37  Okl.  183. 

Petition,  in  action  on  an  account  drawn  upon  theory  of  rescission  of  debt- 

HON.PL.&  PRAC.— 26  (401) 


§§  569-571  PLEADINGS  (Ch.  11 

A  petition  must  be  framed  on  a  distinct  theory,  and  where  it  is 
not  so  drawn,  or  there  is  confusion  of  theories,  so  that  the  court 
cannot  determine  upon  which  a  recovery  is  sought,  the  petition  is 
insufficient.6* 

§  570.    Election 

An  allegation  in  conversion  that,  when  property  was  taken,  it 
wasv  of  a  specified  value,  is  not  an  election  by  plaintiff  to  claim  as 
the  measure  of  damages  the  property's  value  at  the  time,  with 
interest,  rather  than  the  highest  market  value  between  the  conver- 
sion and  verdict,  without  interest.85 

§  571.    Contractual  conditions  precedent — Form 

"In  pleading  the  performance  of  conditions  precedent  in  a  con- 
tract, it  shall  be  sufficient  to  state  that  the  party  duly  performed 
all  the  conditions  on  his  part;  and  if  such  allegations  be  contro- 
verted, the  party  pleading  must  establish,  on  the  trial,  the  facts 
showing  such  performance."  66 

CLAUSE  OF  PETITION — CONTRACTUAL  CONDITIONS  PRECEDENT 

And  plaintiff  further  says  that,  relying  upon  the  contract  and 
agreement  so  made  as  aforesaid,  and  with  the  consent  of  said  de- 
fendant, he  went  into  possession  of  said  lot  and  commenced  to 
build  a  stone  building  for  the  purpose  of  selling  groceries  there- 
in; that  he  made  contracts  for  stonework  and  other  materials  for 
said  buildings  at  a  great  expense  and  outlay  to  himself,  and  spent 

days'  time  in  getting  said  material  and  labor  together  and 

contract  made  far  the  erecting  of  said  building;  and  plaintiff 
says  that  after  he  had  made  said  contract  and  purchased  said  ma- 

or's  constructive  delivery  of  goods  in  satisfaction  of  claim,  held  good  against 
demurrer  on  the  ground  that  petition  stated  a  cause  of  action  for  conversion, 
since  plaintiff  should  be  given  whatever  relief  facts  entitle  him  to,  even  if  he 
has  misconceived  their  legal  effect.  United  States  Tire  Co.  v.  Kirk,  102  Kan. 
418,  170  P.  811. 

e*  Grentner  v.  Fehrenschield,  68  P.  619,  64  Kan.  764. 

es  Funk  v.  Hendricks,  105  P.  352,  24  Okl.  837. 

ee  Rev.  Laws  1910,  §  4773. 

Where  plaintiff  alleges  that  he  has  performed  all  the  conditions  precedent 
on  his  part,  such  allegation  is  sufficient  to  tender  the  issue  to  the  defendant. 
Milwaukee  Mechanics'  Ins.  Co.  v.  Winfleld,  51  P.  567,  6  Kan.  App.  527. 

(402) 


Art  4)  PETITION  g  572 

terial  and  commenced  work  on  said  building,  the  said  defendants 
stopped  this  plaintiff  in  his  work,  and  refused  to  make  said  lease 
in  writing,  and  told  this  plaintiff  they  would  not  execute  said  lease, 
and  then  and  there  refused  to  comply  with  their  agreement;  and 
thereupon  said  defendants  went  into  possession  of  said  lot  and 
have  so  continued  ever  since,  to  the  great  damage  of  this  plaintiff 

in  time,  labor  and  money,  materials,  etc.,  in  the  sum  of  

dollars. 

§  572.    Instrument  for  payment  of  money — Private   stat- 
ute— Form 

"In  an  action,  counterclaim  or  set-off,  founded  upon  an  account, 
promissory  note,  bill  of  exchange  or  other  instrument,  for  the  un- 
conditional payment  of  money  only,  it  shall  be  sufficient  for  a 
party  to  give  a  copy  of  the  account  or  instrument,  with  all  credits, 
and  the  indorsements  thereon,  and  to  state  that  there  is  due  him, 
on  such  account  or  instrument,  fr.om  the  adverse  party,  a  specified 
sum,  which  he  claims,  with  interest.  When  others  than  the  mak- 
ers of  a  promissory  note,  or  the  acceptors  of  a  bill  of  exchange,  are 
parties  in  the  action,  it  shall  be  necessary  to  state,  also,  the  kind 
of  liability  of  the  several  parties,  and  the  facts,  as  they  may  be, 
which  fix  their  liability."  67 

"In  pleading  a  private  statute,  or  a  right  derived  therefrom,  it 
shall  be  sufficient  to  refer  to  such  statute  by  its  title,  and  the  day 
of  its  approval,  and  the  court  shall  thereupon  take  judicial  notice 
thereof."  68 


SUIT  ON  ONE  OR  MORE  NOTES,  AND  TO  FORECLOSE  A  MORTGAGE  SECUR- 
ING   SAME — PARTNERSHIP    AGAINST    CORPORATION 

(Caption.) 

Petition 

Come  now  the  said  plaintiffs,  and  file  their  petition  against  the 
said  defendant,  and  state: 

That  the  plaintiffs,  A.  B.,  C.  D.,  and  E.  F.,  are  and  continuously 
during  all  the  times  herein  mentioned  have  been  a  partnership, 
doing  business  under  the  firm  name  of  B.,  D.  &  Co. 

•7  Rev.  Laws  1910,  §  4774.  .««*  Rev.  Laws  1010,  §  4775. 

(403) 


I    572  PLEADINGS  (Ch.  11 

That  the  said  defendant,  G.,  H.  &  Co.,  is  a  corporation  organized, 
existing,  and  doing  business  under  and  by  virtue  of  the  laws  of 
the  state  of  Oklahoma. 

First  Cause  of  Action 

For  their  first  cause  of  action  against  the  said  defendant,  plain- 
tiffs allege  and  state: 

That  on  the  day  of ,  19 — ,  at ,  the  said  de- 
fendant, as  such  corporation,  by  its  agent  duly  authorized  there- 
unto, for  a  good  and  valuable  consideration,  made,  executed,  and 
delivered  to  these  plaintiffs,  its  promissory  note  in  writing,  dated 
on  that  day,  whereby  it  promised  to  oay  to  the  order  of  plaintiffs, 

under   their  firm   name   of   B.,   D.   &   Co.,  $ ,  months 

after  date  thereof,  together  with  interest  thereon  at  the  rate  of 
-  per  cent,  per  annum  from  date  until  paid;  that  said  note 
further  provided  that  if  the  same  should  be  placed  in  the  hands 
of  an  attorney  for  collection,  there  should  become  due  thereon  the 
further  sum  of  $ as  attorneys  fees. 

A  copy  of  said  note,  together  with  all  indorsements  thereon,  is 
hereto  attached,  marked  "Exhibit  A,"  and  made  a  part  hereof  as 
fully  as  though  set  out  in  full  herein. 

That  no  part  of  said  note  has  been  paid,  except  the  sum  of 
'$ ,  and  that  there  remains  due  and  unpaid  thereon  from  de- 
fendant to  plaintiffs,  the  sum  of  $ ,  together  with  interest 

thereon  from  the  day  of  ,  19 — ,  and  $ attor- 
ney's fees. 

Wherefore  plaintiffs  pray  judgment  against  the  said  defendant, 

G.,  H.  &  Co.,  on  their  first  cause  of  action,  for  the  sum  of  $ , 

together  with  interest  thereon  at  the  rate  of  per  cent,  per 

annum  from  the  day  of ,  19 — ,  and  for  the  further 

sum  of  $ as  attorney's  fees,  and  for  costs  and  all  other  prop- 
er relief. 

Second  Cause  of  Action. 

For  their  second  cause  of  action  against  the  said  defendant, 
plaintiffs  allege  and  state: 

(Continue  as  in  first  cause  of  action,  describing  second  note.) 
(404) 


Art.  4)  PETITION  §  572 

Third  Cause  of  Action. 

For  their  third  cause  of  action  against  the  said  defendant,  plain- 
tiffs allege  and  state: 

That  at  the  time  of  executing  and  delivering  said  notes  set  out 
in  plaintiffs'  first  and  second  causes  of  action,  and  to  secure  the 
payment  thereof  and  interest  and  attorney's  fees  thereon  as  men- 
tioned in  said  notes,  according  to  the  tenor  thereof,  the  said  de- 
fendant, as  such  corporation,  by  its  agent  duly  authorized  there- 
unto, duly  made,  executed,  and  delivered  to  these  plaintiffs  its  cer- 
tain mortgage  in  writing,  whereby  it  granted,  sold,  and  conveyed 
unto  these  plaintiffs  the  following  described  premises,  to  wit: 
(Fill  in  description  of  property.) 

That  said  mortgage  contained  a  proviso  in  substance  the  same 
as  the  aforesaid  condition  of  the  said  notes  and  with  power  and 
authority,  in  case  of  default  as  aforesaid  in  the  payment  of  the 
said  sum  of  money,  or  any  part  thereof,  or  of  the  interest  thereon, 
to  sell  the  said  mortgaged  premises  in  due  form  of  law,  and  out 
of  the  moneys  arising  from  the  sale  thereof  to  pay  the  said  sum 
of  money,  and  interest,  and  attorney's  fees,  with  the  costs  and  ex- 
penses of  the  proceedings  thereupon,  rendering  the  overplus,  if 
any,  to  the  said  mortgagor. 

That  the  said  mortgage  was  duly  recorded  in  the  office  of  the 

county  clerk  of  county,  state  of  Oklahoma,  on  the  

day  of  ,  19 — ,  in  Book  ,  at  page  . 

A  copy  of  said  mortgage  is  hereto  attached,  marked  "Exhibit  C," 
and  made  a  part  hereof  as  fully  as  though  set  out  in  full  herein. 

That  the  said  defendant  has  failed  to  comply  with  the  condi- 
tion of  said  notes  and  mortgage  by  omitting  to  pay  the  same  when 
it  became  due  and  payable,  and  that  there  is  justly  due  to  the  plain- 
tiffs upon  said  notes  and  mortgage  the  sum  of  $ ,  with  inter- 
est thereon  at  the  rate  of  per  cent,  per  annum  from  the 

day  of ,  19 — ,  and  $ attorney's  fees. 

Wherefore  plaintiffs  pray  judgment  against  the  said  defendant 
on  their  third  cause  of  action,  foreclosing  plaintiffs'  lien  upon  said 
property,  and  that  said  defendant  may  be  forever  barred  and  fore- 
closed of  all  right,  claim,  lien,  and  equity  of  redemption  in  the  said 
mortgaged  premises,  to  wit:  (Fill  in  description  of  premises;) 

(405) 


§§  572-573  PLEADINGS  (Ch.  11 

that  the  said  premises  may  be  decreed  to  be  sold  according  to  law; 
that  the  moneys  arising  from  the  sale  may  be  brought  into  court, 
and  that  the  plaintiff  may  be  paid  the  amount  due  on  the  said 
notes  and  mortgage,  with  interest  to  the  time  of  such  payment,  at- 
torney's fees,  the  expenses  of  the  sale  and  the  costs  and  expenses 
of  this  action,  so  far  as  the  amount  of  such  moneys  properly  ap- 
plicable thereto  will  pay  the  same ;  and  that  the  defendant  may  be 
adjudged  to  pay  any  deficiency  which  may  remain,  after  applying 
all  of  said  moneys  so  applicable  thereto,  and  that  the  plaintiff  may 
have  such  other  and  further  relief  in  the  premises  as  shall  be  just 
and  equitable. 

,  Attorneys  for  Plaintiffs. 

(Attach  as  exhibits  copies  of  notes  and 'mortgage.) 

AFFIDAVIT CONTRACT   NOT   USURIOUS 

State  of  Oklahoma/ 


rss  * 
Bounty  01 


,  of  lawful  age,  being  first  duly  sworn,  on  oath,  saysr 

That  he  is  the  one  of  the  plaintiffs  above  named ;  that  he  has  read 
the  above  and  foregoing  petition,  and  knows  the  contents  thereof ; 
that  the  notes  and  mortgage  sued  on  were  not  made  in  violation 
of  the  interest  laws  of  this  state,  and  that  a  greater  rate  of  interest 
than  ten  per  cent,  has  not  been  charged,  reserved,  or  collected  on 
such  notes  sued  on.  (Signature.) 

Subscribed  and  sworn  to  before  me  this  : —  day  of  . 

19 — .  (Signature.) 

Note. — This  affidavit  is  required  to  be  filed  with  the  petition  in 
suits  on  contracts  of  $300  or  less,  in  order  to  give  the  court  juris- 
diction.69 

§  573.     Libel  or  slander — Form 

"In  an  action  for  libel  or  slander,  it  shall  be  sufficient  to  state, 
generally,  that  the  defamatory  matter  was  published  or  spoken  of 
the  plaintiff;  and  if  the  allegation  be  denied,  the  plaintiff  must 
prove,  on  the  trial,  the  facts,  showing  that  the  defamatory  mat- 
ter was  published  or  spoken  of  him."  70 

e»  Sess.  Laws  1916,  c.  20,  §  4,  p.  27;  Bunn's  1918  Supp.  to  Rev.  Laws,  § 
1005c. 

TO  Rev.  Laws  1910,  §  4776. 

Averments  to  show  that  defamatory  words  not  actionable  on  their  face 

(406) 


Art.  4)  PETITION  §  573 

Where  words  are  libelous  per  se,  an  innuendo  is  unnecessary.71 
Where  the  published  article  is  not  libelous  per  se,  plaintiff  must 
plead  facts  showing  special  damages.72 

It  is  not  necessary  to  allege  malice  in  the  publication  of  a  slan- 
der.73 

PETITION  IX  ACTION  FOR  LIBEL  OR  SLANDER 

(Caption.) 

Comes  now  the  said  plaintiff,  A.  B.,  and  for  cause  of  action 
against  the  defendant,  C.  D.,  alleges  and  states: 

1.  That  plaintiff  is  a  resident  and  inhabitant  of  the  county  of 
— ,  in  the  state  of  Oklahoma,  living  near  -  — ,  in  said  coun- 
ty, where  he  has  resided  for  a  number  of  years  last  past;  that  he 

derive  their  defamatory  import  from  extrinsic  facts  and  circumstances  must 
be  applied  to  plaintiff  by  a  proper  colloquium  with  the  intended  and  under- 
stood meaning  correctly  set  out  in  the  innuendoes.  Kee  v.  Armstrong,  Byrd 
&  Co.,  75  Old.  84,  182  P.  494,  5  A.  L.  R.  1349.  A  "colloquium"  only  serves  to 
show  that  the  words  were  spoken  in  reference  to  the  matter  of  the  aver- 
ment Id. 

Averments  to  show  that  defamatory  words  not  actionable  on  their  face  de- 
rive their  defamatory  import  from  extrinsic  facts  and  circumstances  must  be 
applied  to  plaintiff  by  a  proper  colloquium  with  the  intended  and  understood 
meaning  correctly  set  out  in  the  innuendoes.  Kee  v.  Armstrong,  Byrd  &  Co., 
75  Okl.  84,  182  P.  494,  5  A.  L.  R.  1349.  An  "innuendo"  is  only  explanatory  6f 
the  subject-matter  sufficiently  expressed  before,  and  is  and  can  be  only  ex- 
planatory thereof,  and  cannot  extend  sense  of  words  beyond  their  own  mean- 
ing unless  something  is  put  upon  the  record  for  it  to  explain,  nor  can  it  make 
a  thing  certain  which  is  in  fact  uncertain,  nor  enlarge  or  restrict  the  meaning 
of  words,  nor  introduce  new  matter.  Id. 

If  alleged  defamatory  words  are  not  actionable  on  their  face  but  derive 
their  defamatory  import  from  extrinsic  facts  and  circumstances,  such  facts 
and  circumstances  must  be  distinctly  set  forth  in  the  inducement  and  con- 
nected with  words  charged  by  a  proper  averment,  and  such  words  may  be 
made  to  appear  actionable  by  averring  extrinsic  facts  showing  that  they  were 
intended  to  be  slanderous  and  were  so  understood.  Kee  v.  Armstrong,  Byrd 
&  Co.,  75  Okl.  84,  182  P.  494,  5  A.  L.  R.  1349.  An  "inducement"  is  a  state- 
ment of  facts  out  of  which  the  charge  arises,  or  which  is  necessary  or  useful 
to  make  the  charge  intelligible,  or,  in  other  words,  it  is  intended  to  state 
facts  whereby  the  libel  or  slander  is  rendered  intelligible,  and  is  shown  to 
contain  an  injurious  imputation.  Id.  Where  a  petition  in  an  action  for  libel 
failed  to  connect  the  publication  of  words  not  actionable  per  se  with  any  ex- 
trinsic facts  and  circumstances  which  would  make  them  libelous,  it  did  not 
state  a  cause  of  action.  Id. 

71  Kee  v.  Armstrong,  Byrd  &  Co.  (Okl.)  151  P.  572. 

72  McKenney  v.  Carpenter,  141  P.  779,  42  Okl.  410:  Nunnery  v.  Bailey  (Okl.) 
166  P.  82,  L.  R.  A.  1917F,  548 ;   N.  S.  Sherman  Mach.  Co.  v.  Dun,  114  P.  617, 
i>8  Okl.  447. 

7s  Smith  v.  Gillis,  51  Okl.  134,  151  P.  869. 

(407) 


I    673  PLEADINGS  '(Ch.II 

is  a  farmer  by  occupation,  but  is  not  the  owner  of  land,  but  is  the 
renter  of  land. 

2.     That  on  the day  of ,  19 — ,  the  said  defendant, 

wickedly  intending-  to  injure  the  plaintiff  in  his  good  name  and 
reputation,  accosted  the  said  plaintiff  in  the  village  of ,  Ok- 
lahoma, in  the  presence  of  divers  and  numerous  persons,  and  in 
their  hearing  falsely  and  maliciously  did  speak  and  publish  of  and. 
concerning  the  said  plaintiff  false  and  defamatory  words  as  fol- 
lows: "Say,  A.  (meaning  this  plaintiff),  do  you  (meaning  this 
plaintiff)  steal  corn?"  That  when  said  defendant  accosted  your 
said  plaintiff  in  that  manner,  your  said  plaintiff  considered  that 
the  said  defendant  was  joking,  and  that  he  thereupon  jokingly  re- 
plied: "Yes,  I  steal  corn  every  day  if  I  can."  That  the  defendant 
thereupon  continued,  and  your  said  plaintiff  then  observed  that 
the  said  defendant  was  angry,  and  was  not  joking  nor  jesting  in 
the  manner  as  plaintiff  first  supposed.  That  said  defendant  there- 
upon said:  "Well,  we  had  some  corn  stolen  (meaning  thereby 
that  he  and  his  brother  had  had  some  of  their  corn  stolen)."  That 
your  said  plaintiff  replied,  saying:  "Well,  you  (meaning  defend- 
ant) don't  mean  to  say  that  I  stole  your  corn,  do  you  ?"  That  de- 
fendant then  replied  to  said  plaintiff,  saying:  "I  mean  just  what 
I  say."  To  which  your  said  plaintiff  replied,  saying  to  said  de- 
fendant: "C.  (meaning  defendant),  you  (meaning!  defendant) 
don't  accuse  me  of  that,  do  you?"  That  thereupon  the  said  de- 
fendant replied,  saying:  "There  is  very  strong  evidence  that  you 
(meaning  plaintiff)  did."  That  all  of  this  conversation  and  false 
and  defamatory  charges  were  made  by  said  defendant  of  and  con- 
cerning plaintiff  in  a  public  and  angry  and  insolent  manner,  in 
the  presence  and  hearing  of  divers  persons,  who  understood  the 
same,  and  that  by  the  words  aforesaid  the  said  defendant  then  and 
thereby  publicly  charged  the  said  plaintiff  with  stealing  corn  from 
their  premises.  That  said  charge  was  wholly  false  and  unfound- 
ed, and  was  so  spoken  and  published  by  the  said  defendant  to  the 
great  and  lasting  injury  of  your  said  plaintiff. 

Wherefore  plaintiff  prays  judgment  for  the  sum  of dol- 
lars, and  for  costs  of  this  action,  and  all  other  proper  relief. 

X.  Y.,  Attorney  for  Plaintiff.74 

T<  See  Thorrnan  v.  Bryngelson,  87  Neb.  53,  127  N.  W.  117. 
(408) 


Art.  4)  PETITION  §  574» 

§  574.     Construction  and  operation 

The  nature  of  a  suit  is  to  be  determined  in  the  first  instance  by 
the  allegations  of  the  petition,  and  not  from  its  caption.75 

All  the  facts  pleaded  will  be  considered  in  determining  the  suf- 
ficiency of  a  petition;78  but  the  words  "a  corporation,"  in  the 
caption,  cannot  be  construed  as  an  allegation  of  incorporation.77 

Where  a  petition  states  a  good  cause  of  action  for  breach  of  con- 
tract, the  addition  of  words  or  averments  appropriate  to  a  cause  of 
action  for  a  wrong  will  not  change  the  action  from  contract  to 
tort.78 

Where  it  is  doubtful  whether  a  petition  states  a  cause  of  action 
€x  contractu  or  ex  delicto,  £he  courts  are  inclined  against  constru- 
ing it  as  stating  a  cause  of  action  ex  delicto.79 

A  corporation,  in  bringing  suit,  need  not  allege  its  incorporation, 
and  its  legal  capacity  to  sue  will  be  presumed  until  the  contrary  ap- 
pears.80 

In  an  action  founded  on  either  contract  or  tort,  plaintiff  is  not  re- 
quired to  state  on  which  he  relies,  and,  if  he  should  make  such  a 
statement  and  be  mistaken,  the  statement  would  be  immaterial.81 


75  Dodd-Lear  Hardwood  Lumber  Co.  v.  Gyr,  44  Okl.  630,  146  P.  16. 

TO  Where,  in  ejectment,  the  plaintiff  in  setting  forth  statutory  requirements 
in  addition  thereto  sets  out  the  source  of  title  of  each  of  the  parties,  and  a 
demurrer  is  filed  to  such  pleading,  all  of  the  facts  pleaded  will  be  considered 
in  determining  its  sufficiency.  Jones  v.  Games,  87  P.  652,  17  Okl.  470. 

77  The  words  "a  corporation,"  appearing  in  the  title  of  a  case  after  the 
name  of  plaintiff,  are  descriptive  of  the  plaintiff,  and  cannot  be  construed  to 
be  an  allegation  of  incorporation.    Boyce  v.  Augusta  Camp.  No.  7429,  M.  W. 
A.,  78  P.  322,  14  Okl.  642. 

78  Missouri,  K.  &  T.  Ry.  Co.  v.  Hutchings,  Sealy  &  Co.,  78  Kan.  758,  99 
P.  230. 

7  9  Id. 

In  determining  whether  a  petition  states  a  cause  of  action  ex  contractu  or 
ex  delicto,  it  must  be  considered  in  its  entirety,  but  with  special  reference 
to  its  prominent  and  leading  allegations.  Delaney  v.  Great  Bend  Implement 
Co.,  98  P.  781,  79  Kan.  326.  Where  the  averments  make  it  doubtful  whether 
the  action  is  on  contract  or  in  tort,  every  intendment  must  be  made  in  favor 
of  construing  it  as  an  action  on  contract.  Id. 

The  allegations  and  prayer  of  the  pleadings  should  be  looked  to  in  deter- 
mining whether  a  claim  for  damages  is  based  on  contract  or  tort,  and  every 
doubt  should  be  resolved  in  favor  of  it  being  based  on  contract.  Stringer  v. 
Kessler,  56  Okl.  50,  155  P.  867. 

so  Leader  Printing  Co.  v.  Lowry,  59  P.  242,  9  Okl.  89. 

si  Cockerell  v.  Henderson,  105  P.  443,  81  Kan.  335,  50  L.  R.  A.  (N.  S.)  1. 

(409) 


§§  574-575  PLEADINGS  (Ch.  11 

Plaintiff  need  not  negative  contingencies  in  a  contract  sued  on,  the 
happening  of  which  would  operate  in  defendant's  favor.82 

A  petition  is  sufficient  where  the  facts  alleged  clearly  negative  ex- 
ceptions by  inference  alone  and  not  specifically.83 

§  575.     Requisites  and  sufficiency 

The  rules  of  pleading  become  clearer  from  an  examination  of  the 
illustrations  contained  in  the  notes,  from  which  it  appears  that  the 
courts  have  passed  upon  the  sufficiency  of  allegations  of  numerous 
matters  involved  in  actions  of  various  character,  such  as:  Negli- 
gence in  maintaining  bridges,84  railroad  embankments,85  streets,80 
and  nuisances,87  and  in  providing  for  the  safety  of  employes; 88  as- 

32  Minnetonka  Oil  Co.  v.  Cleveland  Vitrified  Brick  Co.,  48  Okl.  745,  150  P. 
712. 

ss  Midland  Valley  R.  Co.  v.  Hardesty,  38  Okl.  559,  134  P.  400. 

s*  A  petition  stating  that  a  town  negligently  permitted  one  of  its  bridges? 
to  remain  out  of  repair,  in  consequence  of  which  an  animal  was  injured,  held 
to  state  a  cause  of  action,  though  it  did  not  state  in  terms  that  the  city  had 
actual  or  implied  knowledge  of  the  defects.  Town  of  Sallisaw  v.  Ritter,  142 
P.  391,  42  Okl.  626. 

SB  A  petition  which  alleges,  substantially,  that  defendant's  railway  runs 
through  plaintiff's  lands  on  an  embankment,  that  defendant  has  failed  to  es- 
tablish and  maintain  proper  openings  for  the  outlet  of  surface  water  falling 
on  and  flowing  over  said  lands,  and  caused  to  be  filled  up  a  natural  water 
course  across  said  lands,  which  caused  the  surface  water  to  stand  and  back 
up  on  plaintiff's  crops  growing  on  said  lands,  to  his  damage,  states  a  cause 
of  action  for  obstruction  of  a  water  course,  and  not  for  damage  by  surface 
water  only.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Maynard,  122  P.  149,  31  Okl.  685. 

as  Petition,  alleging  that  plaintiff's  horses  hitched  to  buggy  were  frightened 
by  children  on  roller  skates,  that  city  had  permitted  street  to  remain  in  an 
unsafe  condition  and  that  buggy  fell  into  hole  and  injured  plaintiff,  held  to 
state  cause  of  action.  City  of  Cushing  v.  Stanley  (Okl.)  172  P.  628. 

87  In  an  action  against  a  city  and  a  private  person  for  damages  resulting 
from  a  nuisance  in  an  alley,  plaintiff  alleged  as  her  cause  of  action  that  de- 
fendant permitted  the  nuisance  to  be  constructed  and  maintained  in  the  alley ; 
and  that  "the  defendants  and  each  of  them  failed,  neglected,  and  refused  to 
abate  such  nuisance  when  notified  to  do  so."  Held,  that  the  petition  suffi- 
ciently alleges  notice  to  the  city  of  the  existence  of  the  nuisance,  and  negli- 
gence on  its  part  thereafter  in  removing  same,  to  be  good  against  a  demurrer. 
City  of  Pawhuska  v.  Rush,  119  P.  239,  29  Okl.  759. 

A  petition  charging  that  a  city's  line  of  sewer  extended  through  plaintiff's 
crops,  that  it  negligently  permitted  surface  water  to  be  discharged  on  the 
crops,  destroying  them,  and  had  disaJ lowed  plaintiff's  claim  for  damages, 
states  a  cause  of  action  as  against  a  general  demurrer.  City  of  Chickasdia 
v.  Looney,  128  P.  136,  36  Okl.  155. 

ss  it  was  not  error  to  refuse  to  strike  from  a  petition  an  allegation  of  gen- 
eral custom  among  others  in  the  same  business  as  to  places  for  work  or  uieth- 

(410) 


Art.  4)  PETITION  §  575 

sumption  of  risk;89  proximate  cause;90  damages  in  general;81 
damages  from  breach  of  contract,9-  breach  of  promise,93  or 

ods,  as  bearing  on  master's  exercise  of  due  care.  Missouri,  O.  &  G.  Ry.  Co.  v. 
Overmyre,  58  Okl.  723,  160  P.  933. 

A  petition,  alleging  negligence  in  the  use  of  defective  machinery  and  the 
giving  of  orders  by  obeying  which  the  servant  received  injuries  held  to  state 
a  cause  of  action.  Enid  Electric  &  Gas  Co.  v.  Decker,  128  P.  70S,  36  Okl.  367. 

8°  An  allegation  in  a  petition  for  injuries  due  to  tie  falling  of  a  water  tank 
placed  by  defendant  in  plaintiff's  kitchen  held  not  to  amount  to  a  confession 
of  knowledge  of  the  defective  condition  of  the  tank  so  as  to  import  an  as- 
sumption of  the  risk  of  injury  therefrom.  Moore  v.  Johnson,  136  P.  422,  39 
Okl.  587. 

so  In  an  action  by  a  servant  for  personal  injuries,  petition  held  to  allege 
that  acts  of  negligence  of  master  were  the  proximate  cause  of  the  accident  in 
which  plaintiff  was  injured.  Ferris  v.  Shandy  (Okl.)  174  P.  1060. 

81  A  petition  alleged  that  plaintiff  was  about  to  commence  an  action  for 
alimony  against  her  husband,  who  was  then  within  the  jurisdiction  of  the 
court;  that  he  was  possessed  of  property  of  the  value  of  $7,000,  but  did  not 
state  where  the  property  was  situated,  or  that  the"  defendant  was  a  resident 
of  the  state;  that  defendant,  who  was  the  district  judge  of  the  court  where 
the  action  was  about  to  be  commenced,  advised  the  husband  to  withdraw  from 
the  jurisdiction  of  the  court,  and  to  dispose  of  his  property ;  that  subse- 
quently she  brought  her  action,  and  obtained  a  judgment  against  him  for 
$1,500;  that  the  execution  issued  thereon  was  returned  unsatisfied.  Held, 
that  the  petition  did  not  state  a  cause  of  action,  because  of  the  uncertainty 
of  plaintiff's  damage.  Harrison  v.  Redden,  36  P.  325,  53  Kan.  265. 

Petition  alleging  increased  depth  of  stream  caused  by  obstruction,  destroy- 
ing use  of  road  across  stream  and  valuable  sand  beds,  with  resulting  damage, 
held  not  demurrable.  Zalaback  v.  City  of  Kingfisher,  59  Okl.  222,  158  P.  926. 

Where  the  petition  in  an  action  for  damages  shows  that  plaintiff  has  sus- 
tained a  detriment  as  defined  by  Rev.  Laws  1910,  §  2845,  and  the  amount 
thereof,  that  defendant  wrongfully  caused  same,  and  that  it  is  a  detriment 
for  which  the  law  affords  redress,  it  states  a  cause  of  action.  Midland  Vallej 
R.  Co.  v.  Larson,  138  P.  173",  41  Okl.  360. 

A  petition  in  an  action  by  an  oil  and  gas  lessor  for  injuries  to  the  surface 
rights  held  to  state  a  cause  of  action.  Pulaski  Oil  Co.  v.  Conner,  62  Okl.  211, 
162  P.  464,  L.  R.  A.  1917C,  1190. 

»2  Where  the  petition  alleged  that  making  of  an  enforceable  contract  foi 
the  carriage  of  goods,  and  alleged  defendant's  breach  resulting  in  plaintiff's 
damage,  such  petition  is  good  as  against  general  demurrer.  St.  Louis  &  S.  F. 
R.  Co.  v.  Wm.  Bondies  &  Co.,  64  Okl.  88,  166  P.  179. 

A  petition  in  replevin  held  not  demurrable,  though  it  did  not  specifically 
allege  breach  of  conditions  of  a  chattel  mortgage,  where  the  attached  copy  of 
the  mortgage  showed  such  breach.  Dabney  v.  Hathaway,  51  Okl.  658,  152 
P.  77. 

Petition  in  an  action  for  breach  of  two  builders'  contracts,  whereby  plain- 
tiff was  forced  to  pay  lien  claimants,  held  to  state  a  cause  of  action.  Antene 
v.  Jensen,  47  Okl.  352,  148  P.  727. 

as  A  petition  in  an  action  for  breach  of  promise  to  marry  held  sufficient. 
Waddell  v.  Wallace,  121  P.  245,  32  Okl.  140,  Ann.  Cas.  1914A,  692. 

(411) 


§    575  PLEADINGS  (Ch.  IT 

death;94  personal  injuries  in  general;95  assault;96  injury  to  pas- 
senger,97   or  shipment;98   recovery  of   excessive  freight   rates;99 

94  In  an  action  by  a  parent  to  recover  for  the  death  of  his  son,  an  allega- 
tion that  he  was  capable  of  earning  $3  per  week,  and  that  by  reason  of  his 
death  plaintiff  had  been  damaged  in  the  sum  of  $10,000,  is  sufficient  to  sustain 
a  verdict.     Kansas  City  v.  Siese,  80  P.  626,  71  Kan.  283. 

Petition  held  to  state  a  cause  of  action  for  damages  from  death  due  to  a 
violation  of  the  Factory  Act.  Frisco  Lumber  Co.  v.  Ethridge,  45  Okl.  566, 
146  P.  441. 

Petition,  in  an  action  for  the  wrongful  death  of  an  employe1,  held  not  de- 
murrable,  where  it  clearly  charged  negligence,  though  it  contained  statements 
from  which  contributory  negligence  might  be  inferred.  Duncan  Cotton  Oil 
Co.  v.  Cox,  139  P.  270,  41  Okl.  633. 

In  an  action  for  the  death  of  a  boy  from  falling  into  a  pit  at  an  abandoned 
city  puinphouse,  which  pit  was  filled  with  water,  and  covered  with  a  light 
layer  of  straw,  petition  held  demurrable.  City  of  Shawnee  v.  Cheek,  137  P. 
724,  41  Okl.  227,  51  L.  R.  A.  (N.  S.)  672,  Ann.  Cas.  1915C,  290. 

95  The  allegations  of  the  petition  as  to  plaintiff's  injuries  held  sufficient  to 
authorize  proof  of  the  impairment  of  his  earning  capacity.     Missouri,  O.  & 
G.  Ry.  Co.  v.  Collins,  47  Okl.  761,  150  P.  142. 

A  petition  for  personal  injury  in  a  crossing  accident,  alleging  that  solely 
by  reason  of  defendant's  negligence,  and  the  negligence  of  its  flagman,  sta- 

96  A  demurrer  to  a  petition  which  alleges  that  defendant  at  a  certain  time 
and  place  willfully  and  maliciously  beat  the  plaintiff  with  a  stick  or  club, 
causing  her  great  pain,  suffering,  and  mental  anguish,  to  her  damage  in  the 
sum  of  $1,000,  is  properly  overruled.    Long  v.  McWilliams,  69  P.  882,  11  Okl. 
562. 

97  The  petition,  in  a  passenger's  action  for  injuries  due  to  the  derailment 
of  a  train,  held  to  state  a  cause  of  action  for  negligence.    Missouri,  O.  &  G. 
Ry.  Co.  v.  Vandivere,  141  P.  799,  42  Okl.  427. 

A  petition  stating  that  the  defendant  carrier  negligently  permitted  the  floor 
of  a  passenger  car  to  become  in  a  dangerous  condition,  to  plaintiff's  injury, 
held  not  demurrable,  though  it  did  not  state  that  the  carrier  knew  of  the 
dangerous  condition ;  proof  of  actual  or  imputed  notice  being  admissible  un- 
der it.  Missouri,  O.  &  G.  Ry.  Co.  v.  Smith,  55  Okl.  12,  155  P.  233. 

»8  An  allegation  in  a  petition  in  an  action  for  injuries  to  live  stock  shipped 
under  a  contract  requiring  suit  within  a  certain  time,  that  the  delay  in  suing 
was  due  to  pending  negotiations  between  plaintiff  and  connecting  carriers, 
held  not  to  state  an  implied  waiver  of  the  contract  limitation  by  the  initial 
carrier.  Harrington  v.  Wichita  Falls  &  N.  W.  Ry.  Co.,  56  Okl.  729,  156  P.  634. 

99  A  petition  against  a  carrier  to  recover  excessive  freight  rates,  alleging 
the  distance  from  the  starting  point  to  destination,  that  a  certain  sum  was 
a  reasonable  compensation  for  carrying  the  commodity  over  defendant's  line 
for  such  distance,  that  defendant  wrongfully  charged  plaintiff  a  larger  sum 
stated,  more  than  a  reasonable  charge,  which  plaintiff  was  compelled  to  pay 
and  did  pay  under  protest,  and  that  plaintiff  had  never  consented  that  the 
charge  was  reasonable,  but  had  demanded  the  return  of  the  excessive  and 
unreasonable  part  thereof,  which  had  been  refused,  stated  a  cause  of  action. 
Ft.  Smith  &  W.  R.  Co.  v.  Chandler  Cotton  Oil  Co.,  106  P.  10,  25  Okl.  82. 

(412) 


Art.  4)  PETITION  .  §  575 

trover;  *  malicious  prosecution  ;  2  consideration ; 8  the  account  sued 
on ;  4  rights  in  replevin  of  the  holder  of  a  chattel  mortgage  5  and  of 

tioned  as  required  by  a  city  ordinance,  in  being  absent  from  his  post  and  in 
failing  to- give  any  warning,  relied  upon  a  violation  of  the  ordinance.  Lusk 
v.  Pugh  (Okl.)  176  P.  80. 

A  petition  in  an  action  for  injuries  to  a  boy  alighting  from  a  moving 
freight  train  by  order  of  the  fireman  held  to  state  a  cause  of  action.  Chicago, 
R.  I.  &  P.  Ry.  Co.  v.  Matukas,  47  Okl.  302,  147  P.  1038,  L.  R.  A.  1917C,  1066. 

Petition  in  employe's  action  for  injuries  held  to  state  a  cause  of  action 
based  on  concurring  negligence  of  a  fellow  servant  and  of  the  master.  Frisco 
Lumber  Co.  v.  Spivey,  140  P.  157,  40  Okl.  633. 

Petition,  in  a  fireman's  action  against  a  city,  held  to  sufficiently  state,  as 
against  a  general  demurrer,  facts  from  which  it  could  be  inferred  that  the 
city  had  notice  of  the  defects  in  the  street  in  time  to  have  repaired  same 
with  the  exercise  of  reasonable  diligence.  City  of  Ardmore  v.  Fowler,  54 
Okl.  77,  153  P.  1117. 

A  petition  in  a  pedestrian's  action  for  injuries  from  a  defective  sidewalk 
held  not  subject  to  general  demurrer,  where  it  alleged  that  the  city  unlaw- 
fully and  negligently  permitted  the  sidewalk  to  remain  unsafe,  open,  and 
unguarded.  City  of  Woodward  v.  Bowder,  46  Okl.  505,  149  P.  138. 

i  A  petition  in  trover  states  a  cause  of  action  when  it  alleges  that  plaintiff 
was  the  owner  of  the  property  in  question,  describing  it,  and  alleging  its 
value,  and  that  defendants  wrongfully  took  and  converted  it  to  their  own 
use.  Robinson  v.  Peru  Plow  &  Wheel  Co.,  31  P.  988,  1  Okl.  140. 

-  A  petition  in  an  action  for  malicious  prosecution,  alleging  that  a  prose- 
cution was  commenced  against  plaintiff,  that  it  was  instituted  by  defendants, 
that  it  was  malicious  and  without  probable  cause,  and  that  it  has  been  finally 
terminated  in  plaintiff's  favor,  states  a  cause  of  action.    Schrieber  v.  Clapp, 
74  P.  316,  13  Okl  215. 

s  The  petition  in  an  action  for  the  balance  due  on  an  account  for  material 
used  in  repairs  on  a  building  and  alleging  a  novation  held  to  plead  a  consid- 
eration under  Rev.  Laws  1910,  §  926.  Martin  v.  Leeper  Bros.  Lumber  Co.,  48 
Okl.  219,  149  P.  1140. 

*  A  petition  drawn  under  Rev.  Laws  1910,  §  4774,  authorizing  the  use  of  a 
short  form  of  an  account  in  an  action  on  account,  held  to  substantially  com- 
ply with  the  requirements  of  such  statute,  so  that  it  was  not  error  to  over- 
rule a  demurrer  and  an  objection  to  the  introduction  of  any  evidence.    Moo- 
ney  v.  First  State  Bank  of  Washington,  Okl.,  48  Okl.  676,  149  P.  1173. 

5  A  petition  which  bases  the  right  of  plaintiffs'  recovery  upon  their  special 
ownership  in  property  under  a  chattel  mortgage,  and  which  contains  the 
usual  allegations  of  such  pleading  in  replevin,  and  alleges  the  conditions  of 
the  note  so  secured  have  been  broken,  is  not  subject  to  the  objection  that  it 
is  insufficient  to  state  a  cause  of  action  because  it  does  not  state  that  the  note 
has  not  been  paid,  or  the  amount  due  thereon.  Swope  v.  Burnham,  52  P.  924, 
6  Okl.  736. 

A  petition  in  replevin  to  recover  possession  of  chattels  embraced  in  a  chat- 
tel mortgage,  for  the  purpose  of  enabling  the  mortgagee  to  enforce  his  lien, 
and  which  sets  out  the  mortgage  and  shows  by  independent  averments  that 
the  particular  property  sought  to  be  recovered  is  not  the  property  embraced 
in  a  prior  chattel  mortgage  covering  some  of  the  property  embraced  in  plain- 

(413) 


§    575  PLEADINGS  (Ql.  11 

the  lessee ;  *  action  against  stockholders ;  7  interest ;  8  bonds ;  9  in- 

tiff's  mortgage,  is  not  subject  to  the  objection  on  demurrer  that  the  petition 
does  not  show  right  of  possession  in  the  plaintiff.  Payne  v.  McCormick  Har- 
vesting Mach.  Co.,  66  P.  287,  11  Okl.  318.  Where  the  plaintiff  claims  the  right 
to  possession  of  property  by  virtue  of  the  lien  created  by  a  chattel  mortgage, 
under  the  general  denial  the  defendant  is  entitled  to  show  that  the  mortgage 
was  obtained  by  fraud  or  deception,  and  thus  defeat  the  lien,  and  conse- 
quently the  right  of  possession  in  the  mortgagee.  Id. 

In  replevin  by  a  mortgagee,  the  petition  is  not  subject  to  general  demurrer 
because  it  fails  to  allege  condition  broken  in  the  mortgages,  and  that  the 
notes  were  due,  since  the  mortgages  were  attached  to  the  petition  and  made 
a  part  thereof,  and  contain  copies  of  the  notes  showing  that  they  were  past 
due  when  suit  was  brought,  and  a  condition  that  on  default  the  mortgagee 
was  entitled  to  possession.  Whiteacre  v.  Nichols,  87  P.  865,  17  Okl.  387. 

e  Petition  in  replevin  by  lessee  held  to  show  that  the  building  in  controversy 
was  personal  property,  removable  under  Rev.  Laws  1910,  §  6749.  Welch  v. 
Church,  55  Okl.  600,  155  P.  620. 

7  A  petition  against  a  stockholder  by  a  trustee  in  bankruptcy  of  a  corpora- 
tion for  par  value  of  stock  for  which  defendant  had  transferred  lease  con- 
taining covenant  against  assignment,  held  insufficient  to  state  a  cause  of  ac- 
tion. Chilson  v.  Cavanagh,  61  Okl.  98,  160  P.  601,  L.  R.  A.  1918D,  1044. 

Petition,  in  a  stockholder's  action  against  a  corporation  and  other  stock- 
holders and  officers  to  rescind  a  sale  of  stock  formerly  owned  by  plaintiff  and 
sold  to  the  individual  defendants  and  to  secure  a  reissuance  of  the  stock  to 
plaintiff,  held  insufficient  to  show  a  right  to  the  relief  sought.  Checotah 
Hardware  Co.  v.  Hensley,  141  P.  422,  42  Okl.  260.  Where  the  directors  of  a 
corporation  are  guilty  of  a  breach  of  trust  injurious  to  the  corporate  assets 
and  to  shareholders  and  the  corporation  refuses  to  sue  to  redress  such  in- 
juries, one  or  more  shareholders  may  proceed  in  their  individual  names.  Id. 
Petition  in  a  stockholder's  action  for  redress  for  breaches  of  trust  injurious 
to  the  corporate  assets  and  plaintiff's  right  held  demurrable,  where  it  did  not 
clearly  show  that  a  demand  on  the  defendant  directors  to  enforce  the  rights 
of  the  corporation  would  have  been  refused.  Id. 

Amended  petition,  in  action  by  bank  commissioner  to  recover  double  lia- 
bility, imposed  by  Rev.  Laws  1910,  §  265,  upon  a  stockholder  of  insolvent 
state  bank,  held  to  state  a  cause  of  action.  Blackert  v.  Lankford  (Okl.)  176 
P.  532. 

Complaint  in  equity  where  a  receiver  joined  subscribers  to  the  capital  stock 
of  a  bank  as  defendants  to  recover  unpaid  subscriptions,  which  alleges  that 
the  judge  who  appointed  the  receiver  on  application  of  creditors  supported 

s  Where  an  itemized  account,  showing  when  the  several  items  were  pur- 
chased, and  the  time  when  the  purchases  were  to  be  paid  for,  is  attached  to 
and  made  a  part  of  the  complaint,  a  prayer  asking  for  judgment  for  the 
principal  sum,  together  with  interest  according  as  the  same  may  appear  to 
be  due  from  the  account,  is  sufficient  to  support  a  verdict  for  the  principal 
sum  with  interest  from  the  date  on  which  each  payment  became  due  to  the 
date  of  the  verdict.  Dunham  v.  Holloway,  41  P.  140,  3  Okl.  244,  judgment 
affirmed  Holloway  v.  Dunham,  18  S.  Ct.  784,  170  U.  S.  615,  42  L.  Ed.  1165. 

9  See  note  9  on  following  page. 

(414) 


Art.  4)  PETITION  §  575 

surance;10    money    had    and    received;11    ejectment;12    avoiding 

by  a  showing  that  the  bank  was  insolvent  and  without  assets  entered  an  or- 
der directing  the  receiver  to  retain  counsel  and  sue  defendants  as  subscrib- 
ers on  their  unpaid  subscriptions,  or  for  the  stock  issued  to  them  for  the 
benefit  of  all  the  creditors,  and  that  the  suit  is  filed  under  such  order,  war- 
rants the  court  to  treat  such  suit  as  brought  by  the  creditors  of  the  insolvent 
bank,  over  which  equity  has  jurisdiction,  and  in  which  all  the  subscribers 
may  be  joined  as  defendants.  Dill  v.  Ebey,  112  P.  973,  27  Okl.  584,  46  L.  R. 
A.  (N.  S.)  440. 

A  petition  in  an  action  against  a  stockholder  for  attorney's  fees  for  serv- 
ices rendered  in  an  action  instituted  by  him  in  a  federal  court  in  behalf  both 
of  himself  and  the  corporation  construed  as-  to  the  relief  sought.  Colley  v. 
Sapp,  44  Okl.  16,  142  P.  1193,  affirming  judgment  on  rehearing  44  Okl.  16,  142 
P.  989. 

8  In  an  action  on  a  constable's  bond  for  a  wrongful  seizure  and  sale  of ' 
property  under  an  attachment,  a  petition  alleging  that  part  of  the  property 
levied  on,  to  wit,  500  bushels  of  wheat,  was  wasted  through  the  officer's  neg- 
ligence, and  that  the  attached  property  was  sold  at  private  sale,  states  a 
cause  of  action.    Holdredge  v.  McCombs,  56  P.  536,  8  Kan.  App.  663. 

A  petition,  in  an  action  on  the  bond  of  a  firm  of  abstracters  to  recover 
damages  by  reason  of  an  error  in  the  abstract,  stating  that  plaintiff,  relying 
on  the  abstract,  covenanted  to  warrant  title  to  his  property  against  the  liens 
of  all  persons  whatsoever,  and  that  in  order  to  protect  the  property  purchased 
from  plaintiff  the  purchaser  was  compelled  to  pay  to  the  clerk  of  the  district 
court  the  sum  of  $216  to  prevent  the  selling  of  the  property  under  execution, 
whereby  the  plaintiff  became  liable  to  pay  to  said  purchaser  the  said  sum, 
does  not  state  facts  sufficient  to  show  that  plaintiff  sustained  actual  injury. 
Walker  v.  Bowman,  105  P.  649,  judgment  reversed  on  rehearing  111  P.  319, 
27  Okl.  172,  30  L.  R.  A.  (N.  S.)  642,  Ann.  Gas.  1912B,  839. 

Petition  in  an  action  on  a  building  contractor's  bond  held  to  state  a  cause 
of  action.  Gorton  v.  Freeman,  51  Okl.  516,  152  P.  127. 

Petition  in  an  action  on  a  receiver's  bond  held  sufficient  as  against  general 
demurrer,  where  it  alleged  the  giving,  and  facts  constituting  a  breach,  of  the 
bond.  Nichols  v.  Dexter,  52  Okl.  152,  152  P.  817. 

In  action  on  a  receiver's  bond,  failure  to  attach  to  the  petition  a  copy  of 
the  order  appointing  the  receiver  does  not  render  the  petition  subject  to  gen- 
eral demurrer.  Nichols  v.  Dexter,  52  Okl.  152,  152  P.  817. 

10  An  allegation  in  the  petition  that  defendant,  a  solvent  insurance  com- 

11  Petition  held  to  state  a  cause  of  action  for  money  had  and  received. 
Martindale  v.  Shaha,  51  Okl.  670,  151  P.  1019. 

12  A  complaint  in  ejectment  under  Code  1890,  c.  70,  art.  32,  §  5,  is  not  in- 
sufficient in  not  specifically  alleging  that  plaintiff  is  entitled  to  the  premises 
in  suit,  where  it  alleges  facts  leading  to  that  conclusion.     Carson  v.  Butt, 
46  P.  596,  4  Okl.  133. 

A  description  in  a  petition  in  ejectment  of  the  land  sued  for  held  sufficient 
to  support  a  judgment  for  plaintiffs  on  failure  to  answer.  State  v.  Thomas, 
126  P.  1082,  87  Kan.  803. 

In  an  action  for  possession  of  land,  filed  prior  to  the  time  when  Rev.  Laws 
1910  became  operative,  where  the  petition  contained  all  the  allegations  re- 
quired by  Snyder's  Comp.  Laws  1909,  §  6122,  it  is  good  against  a  general  de- 
murrer. Frazier  v.  Nichols,  50  Okl.  41,  150  P.  711. 

(415) 


§    575  PLEADINGS  (Cll.  11 

pany,  had  refused  to  pay  the  loss  on  a  policy  on  demand  therefor,  held  equiv- 
alent to  an  allegation  that  it  had  denied  liability.  America.^  Nat.  Ins.  Co.  v. 
Donahue,  54  Okl.  294,  153  P.  819. 

Petition  alleging  that  defendant  received  premium  for  a  fidelity  bond  and 
signed  it,  knowing  that  principal  had  not  signed,  and  delivered  it  to  plaintiff 
as  a  completed  instrument,  sufficiently  alleged  defendant's  waiver  of  princi- 
pal's signature.  Oklahoma  Sash  &  Door  Co.  v.  American  Bonding  Co.  (Okl.) 
170  P.  511. 

Where  the  petition  alleged  the  property  insured  was  on  March  7th  located 
in  the  building  described,  and  in  another  paragraph  averred  its  destruction 
<m  that  day,  it  will  be  inferred  that  the  pleader  intended  to  allege  the  prop- 
erty was  so  located  at  the  time  of  the  fire.  German- American  Ins.  Co.  of  New 
York  v.  Lee,  51  Okl.  28,  151  P.  642. 

Pleadings  in  action  on  insurance  policy  held  to  sufficiently  plead  facts  con- 
stituting waiver  by  defendant  of  forfeiture  through  breach  of  warranties  con- 
tained in  the  policy.  Insurance  Co.  of  the  State  of  Pennsylvania  v.  Harris, 
49  Okl.  165,  152  P.  359. 

An  allegation  "that  defendant  refused  payment"  held  equivalent  to  an  al- 
legation "that  defendant  denied  liability,"  when  applied  to  a  solvent  insur- 
ance company.  Continental  Ins.  Co.  v.  Chance,  48  Okl.  324,  150  P.  114. 

Petition,  in  an  action  on  a  bond  guaranteeing  against  embezzlement  by  an 
employe"  held  to  sufficiently  allege  the  embezzlement.  Oklahoma  Sash  &  Door 
Co.  v.  American  Bonding  Co.  (Okl.)  153  P.  1151. 

Assured's  allegation  in  his  pleading  that  he  failed  to  perform  the  condi- 
tions of  the  policy  because  of  ignorance  of  same  held  not  to  excuse  him, 
where  there  was  no  allegation  of  fraud,  misrepresentation,  or  concealment. 
Brown  v.  Connecticut  Fire  Ins.  Co.,  of  Hartford,  Conn.,  52  Okl.  392,  153  P. 
173.  An  allegation  that  the  existence  of  mortgages  on  the  insured  property 
in  violation  of  a  forfeiture  clause  did  not  contribute  to  the  loss  held  not  to 
state  facts  relieving  plaintiff  from  violating  the  policy  so  as  to  entitle  him 
to  recover.  Id. 

Insured  claiming  right  under  Rev.  Laws  1910,  §  984,  to  rescind  contract 
substituting  policies  with  separate  loan  agreement  was  not  required  to  allege 
false  representations  inducing  execution  of  separate  agreement,  so  that  sus- 
taining of  general  demurrer  to  petition  was  reversible  error.  Myler  v.  Fidel- 
ity Mut.  Life  Ins.  Co.  of  Philadelphia,  64  Okl.  293,  167  P.  601. 

Petition  by  insured  to  rescind  contract  substituting  insurance  policies  with 
separate  loan  agreement,  alleging  that  he  did  not  have  actual  knowledge  of 
loan  agreement  until  ten  years  thereafter,  did  not  show  such  laches  as  to  be 
vulnerable  to  a  general  demurrer.  Myler  v.  Fidelity  Mut.  Life  Ins.  Co.  of 
Philadelphia,  64  Okl.  293,  167  P.  601. 

A  petition,  alleging  that  the  loss  occurred  when  the  policy  was  not  in  force, 
held  demurrable.  I.  Friedman  Co.  v.  Harn,  48  Okl.  694,  150  P.  680. 

Petition  in  an  action  on  an  indemnity  bond  not  signed  by  the  employe"  held 
not  demurrable,  where  it  alleged  facts  constituting  a  waiver  of  a  condition 
of  the  bond,  requiring  the  employees  signature  to  the  bond.  Oklahoma  Sash 
&  Door  Co.  v.  American  Bonding  Co.  (Okl.)  153  P.  1151. 

In  an  action  on  a  fire  policy,  a  petition  alleging  that  the  defendant  knew 
that  the  fee  simple  to  the  land  on  which  the  insured  building  was  situated 
was  in  the  Choctaw  and  Chickasaw  Tribes  of  Indians,  and  that  the  condition 
of  the  policy  as  to  sole  and  unconditional  ownership  was  waived,  states  a 

(416) 


Art.  4)  PETITION  §  575 

statute  of  frauds;18  subrogation;1*  equity  in  general;15  fore- 
closure; 16  enjoining  foreclosure  17  or  collection  of  assessments; 18 
grounds  for  injunction;19  offer  to  restore;20  rescission  and  can- 
cellation;21 reformation  of  instruments;22  divorce;23  judg- 
ments;24 trusts,25  and  specific  performance.26 

cause  of  action.  Conley  v.  Northwestern  Fire  &  Marine  Ins.  Co.,  127  P.  424, 
34  Old.  749. 

The  petition  in  an  action  on  an  accident  policy  held  to  sufficiently  allege 
compliance  with  the  terms  of  the  policy  so  as  to  authorize  the  introduction  of 
evidence  thereunder.  Continental  Casualty  Co.  v.  Wynne,  129  P.  16,  36  Okl.  325. 

is  Plaintiff's  bill  of  particulars-  demanding  in  the  language  of  Rev.  Laws 
1910,  |  2860,  $199.50  as  "the  excess  *  *  *  of  the  value  *  *  *  to  the 
buyer  over  the  amount  which  would  have  been  due  to  the  seller  under  the 
contract  if  it  had  been  fulfilled,"  and  disclosing  that  defendant  had  not  sub- 
scribed any  note  or  memorandum  of  the  contract,  as  required  by  statute  of 
frauds  (Rev.  Laws  1910,  §  941),  held  to  state  no  cause  of  action.  Altoona 
Portland  Cement  Co.  v.  Burbank,  44  Okl.  75,  143  P.  845. 

A  petition  alleging,  in  substance,  that  defendant  is  indebted  to  plaintiff  in 
a  specified  sum,  the  agreed  price  of  a  specified  quantity  of  coal,  which  "coal 
was  sold  and.  delivered  to-  the  defendant  at  the  special  instance  and  request 
of  the  defendant,  and  the  same  was  received  by  the  defendant  and  used  by 
him  and  converted  to  his  own  use,"  is  not  subject  to  demurrer  on  the  ground 
that  the  contract  was  verbal,  and  within  the  statute  of  frauds.  Taylor  v. 
Canadian  Coal  Co.,  122  P.  163,  31  Okl.  601. 

Petition  held  not  to  fail  to  state  a  cause  of  action  under  statute  of  frauds 
by  reason  of  alleged  contract  being  in  parol.  McCoy  v.  McCoy,  121  P.  176, 
30  Okl.  379,  Ann.  Cas.  1913C,  146. 

In  an  action  to  recover  the  contract  price  of  certain  machinery,  a  petition 
which  states  that  the  same  on  parol  order  of  defendant  was  shipped  by  rail 
by  plaintiff's  principal  to  a  third  person  at  a  certain  place,  and  there  deliv- 
ered as  per  order  for  and  on  behalf  of  the  defendant,  and  which  had  been 
ordered  through  and  paid  for  by  plaintiff,  states  a  contract  void  under  the 
statute  of  frauds,  in  that  it  fails  to  state  that  the  machinery  was  accepted 
or  received  by  the  purchaser.  Tinkelpaugh-Kimmel  Hardware  Co.  v.  Minne- 
apolis Threshing  Mach.  Co.,  95  P.  427,  20  Okl.  187. 

14  Petition  against  contractor  by  owner  for  amounts  due  subcontractors  for 
which  liens  might  be  obtained  is  demurrable  where  owner  has  not  been  sub- 
rogated  to  rights  of  subcontractors,  and  they  have  taken  no  steps  looking  to 
establishment  of  liens.     Bunker  v.  Haskett,  56  Okl.  545,  156  P.  347. 

15  A  petition,  averring  defendant  claims  some  right,  title,  or  interest,  but 
that,  if  he  has  any,  the  same  is  inferior  and  subject  to  plaintiff's  lien,  states 
facts  sufficient  to  constitute  a  cause  of  action,  and  to  support  a  decree  against 
&-uch  defendant.     Horton  v.  Haines,  102  P.  121,  23  Okl.  878. 

Where,  in  an  action  by  a  person  to  be:  ad  judged  the  rightful  owner  of  land, 
because  of  a  mistake  of  law  .of  the  land  office  in  deciding  adversely  to  him 
in  a  contest,  the  court  properly  sustained  a  demurrer  to  a  petition  which 
showed  on  its  face  that  a  patent  was  not  issued.  Jordan  v.  Smith,  73  P.  308, 
12  Okl.  703. 

16-26  See  notes  16  to  26  on  pages  418  to  421. 

HON. PL. &  PBAC.— 27 


§  575  PLEADINGS  (Ch.  13 

i«  A  petition,  in  an  action  to  foreclose  a  mortgage  on  an  oil  and  gas  lease 
in  the  Osage  Nation,  held  to  state  a  cause  of  action.  Davis  v.  Moffett,  144 
P.  607,  43  Okl.  771. 

In  suit  on  note  and  to  foreclose  chattel  mortgage,  petition  in  intervention, 
alleging  that  mortgagor  delivered  to  intervene!-  notes  secured  by  his  chattel 
mortgage  duly  acknowledged  and  recorded,  and  asking  to  have  its  lien  de- 
clared superior  to  plaintiffs,  stated  a  cause  of  action,  where  the  mortgage  set 
up  by  plaintiff  was  void  on  its  face  as  to  intervenes  Guarantee  State  Bank 
v.  Moore,  63  Okl.  133,  163  P.  272. 

The  petition,  in  an  action  to  foreclose  a  mechanic's  lien  for  material  fur- 
nished to  a  builder  before  his  discharge  by  the  lessee  and  subsequently  used 
by  the  lessee  in  the  building,  held  to  state  a  cause  of  action  entitling  plaintiff 
to  enforce  his  lien  against  the  lessee  the  same  as  though  he  were  an  original 
contractor  with  an  owner.  C.  E.  Sharp  Lumber  Oo.  v.  Kansas  Ice  Co.,  142 
P.  1016,  42  Okl.  689. 

In  action  on  note  secured  by  maker's  individual  mortgage  upon  "all  her 
interest"  in  a  quarter  section,  alleging  that  other  defendants  claimed  some 
interest  in  land,  and  asldng  that  they  appear  and  assert  their  claim,  stated 
a  cause  of  action.  Neil  v.  Union  Nat.  Ban*  of  Chandler  (Okl.)  178  P.  659. 

Petition  in  foreclosure  held  to  allege  that  the  interest  claimed  by  certain 
defendants  extended  to  all  the  property  and  was  derived  from  the  mortgagor 
since  the  execution  of  the  mortgage.  De  Watteville  v.  Sims,  44  Okl.  708,  146 
P.  224. 

IT  A  petition  to  restrain  a  sale  on  foreclosure,  on  the  ground  that  plaintiffs 
had  a  superior  equity  in  the  property  because  of  certain  mortgages  held  by 
them  on  the  property,  that  defendants  would  not  recognize  the  claims  of 
plaintiffs  and  that  if  defendant  sold  the  property,  it  would  pass  into  the 
hands  of  innocent  purchasers,  is  subject  to  demurrer,  as  plaintiffs  could  in 
the  foreclosure  suit  show  that  the  foreclosure  was  not  in  conformity  to  law, 
and  had  the  judgment  in  such  suit  been  against  them,  they  could  have  brought 
error,  and  have  saved  any  right  that  might,  in  that  case,  have  been  taken 
away  from  them.  Perdue  v.  United  States  Fidelity  &  Guaranty  Co.,  39  Okl. 
168,  134  P.  438. 

Petition  in  landlord's  suit  against  tenant  and  his  mortgagee  to  enjoin  fore- 
closure of  chattel  mortgage  on  furniture  of  hotel,  merely  alleging  lease,  ten- 
ant's occupation  of  hotel,  and  effect  of  foreclosure,  stated  no  cause  of  action. 
Beane  v.  Rucker  (Okl.)  168  P.  1167. 

is  Petition,  in  an  action  to  enjoin  the  county  treasurer  from  collecting  spe- 
cial assessment  warrants  and  extending  tax  rolls,  held  demurrable  under 
Rev.  Laws  1910,  §  644,  where  it  did  not  show  want  of  jurisdiction  to  make 
the  improvements  and  showed  that  the  action  was  commenced  more  than  60 
days  after  the  assessment  was  made.  Terry  v.  Hinton,  52  Okl.  170,  152 
P.  851. 

Petition,  in  an  action  to  enjoin  a  pretended  special  assessment  wrongfully 
levied  against  plaintiff's  property,  held  sufficient  to  state  a  cause  of  action. 
Hoehler  v.  Short,  140  P.  146,  40  Okl.  681. 

A  petition  against  city  officials  to  restrain  the  collection  of  special  assess- 
ments for  street  improvements  is  insufficient,  where  the  only  acts  remaining 
are  to  be  performed  by  the  county  clerk  and  treasurer.  Harn  v.  Oklahoma 
City,  47  Okl.  639,  149  P.  868. 

i»  Petition  in  several  counts  to  enjoin  county  treasurer  from  selling  and 

(418) 


Art.  4)  PETITION  §  575 

from  issuing  tax  deeds  to  petitioner's  land,  alleging  his  payment  of  one-half 
of  taxes  levied  upon  part  of  land  before  delinquent,  its  acceptance,  and  treas- 
urer's refusal  to  issue  a  tax  receipt  and  to  enter  payment,  and  a  tender  of 
other  taxes  with  same  result,  etc.,  held  to  state  facts  entitling  petitioner  to 
injunction.  Watkins  v.  Yell  (Okl.)  176  P.  390. 

A  burial  place  is  not  per  se  a  nuisance  to  a  person  living  in  its  immediate 
vicinity,  and,  if  he  seeks  to  enjoin  the  further  use  or  establishment  of  a  pri- 
vate burial  ground  near  his  house,  it  is  not  sufficient  to  allege  in  general 
terms  probable  injury  to  the  health  of  his  family  by  pollution  of  the  air  and 
water  or  other  injuries,  but  he  must  state  facts  from  which  the  court  can 
clearly  see  that  such  consequences  will  most  probably  result.  Clinton  Ceme- 
tery Ass'n  v.  McAttee,  111  P.  392,  27  Okl.  160,  31  L.  R.  A.  (N.  S.)  945. 

Petition,  in  suit  to  enjoin  sale  of  refunding  bonds,  merely  alleging  that  in- 
debtedness refunded  was  incurred  in  violation  of  Const,  art.  10,  §  26,  and 
Daws  1910-11,  c.  80,  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action.  Hume  v.  Wyand  (Okl.)  173  P.  813. 

20  In  an  action  for  rescission  of  a  deed  obtained  in  consideration  of  void 
corporate  stock,  an  allegation  in  the  petition  that  plaintiff  be  charged  with 
so-called  dividends  received  by  him  and  credited  with  the  value  of  the  rea- 
sonable use  of  the  lands  conveyed  was  a  sufficient  "offer  to  restore,"  within 
Rev.  Laws  1910,  §  986,  providing  how  and  when  a  rescission  may  be  accom- 
plished. Pruitt  v.  Oklahoma  Steam  Baking  Co.,  39  Okl.  509,  135  P.  730. 

In  an  action  for  rescission  and  cancellation  of  a  deed  fraudulently  obtained, 
an  allegation  that  plaintiffs  are  ready  and  willing  to  execute  a  deed  to  the 
land  traded  for  to  defendants  is  a  sufficient  offer  to  restore  within  Wilson's 
Rev.  &  Ann.  St.  1903,  §  827.  Clark  v.  O'Toole,  94  P.  547,  20  Okl.  319. 

An  allegation  in  a  bill  to  set  aside  a  conveyance  for  fraud  preliminary  to 
the  contest  of  a  will  that  if  it  should  be  found  that  the  consideration  received 
by  plaintiff  for  execution  of  the  conveyance  was  not  money  of  testatrix, 
whose  sole  heir  plaintiff  is,  but  was  money  of  defendant,  plaintiffs  are  willing 
to  do  equity,  and  will  upon  the  establishment  of  such  fact  repay  such  money 
with  interest  to  defendant,  and  are  willing  to  have  the  relief  awarded  made 
subject  to  such  repayment  within  a  time  to  be  fixed  by  the  court,  is  a  suffi- 
cient offer  to  do  equity.  Gidney  v.  Chappell,  26  Okl.  737,  110  P.  1099. 

21 A  petition  for  decree  setting  aside  transfers  of  real  estate  by  plaintiff 
to  defendants  held  to  state  a  cause  of  action  against  both  defendants.  Jones 
v.  Tydings,  123  P.  1063,  31  Okl.  763. 

Petition  for  cancellation  of  signature  to  an  indemnity  bond  for  forgery 
held  to  state  a  cause  of  action  in  equity.  National  Surety  Co.  v.  Mullen,  50 
Okl.  437,  150  P.  873. 

In  an  action  to  rescind  a  contract  for  fraud,  a  petition  showing  the  acts 
of  fraud,  .and  that  plaintiff  acted  upon  them,  believing  them  to  ue  true,  and 
wherein  the  acts  and  pretenses  were  false,  states  a  cause  of  action.  Shuler 
v.  Hall,  141  P.  280,  42  Okl.  325. 

Petition  in  an  action  to  set  aside  a  deed  held  to  sufficiently  state,  as  against 
a  demurrer,  that  the  grantor's  mental  unsoundness  continued  from  a  date 
named  until  his  death.  Jenkins  v.  Jenkins,  146  P.  414,  94  Kan.  263.  A  peti- 
tion, filed  by  heirs  of  a  grantor  of  unsound  mind  to  set  aside  a  deed,  need 
not  allege  fraud  other  than  procurement  of  the  deed,  knowing  that  the  gran- 
tor was  mentally  unsound.  Id. 

A  petition  alleged  that  defendant,  a  woman,  by  false  professions  of  love 


§    575  PLEADINGS  (Ch.  11 

and  affection,  and  false  pretenses  of  wealth,  and  by  a  promise  to  marry  plain- 
tiff, and  by  pretending  that  it  was  necessary  to  stop  the  opposition  of  her 
children  to  the  marriage,  induced  plaintiff  to  convey  his  land  to  her ;  that 
she  never  had  any  intention  of  marrying  plaintiff.  Held,  that  the  petition 
stated  a  cause  of  action  for  setting  aside  the  conveyance,  though  it  was  the 
agreement  of  the  parties  that  after  their  marriage  the  land  should  be  con- 
veyed to  another  person.  Douthitt  v.  Applegate,  6  P.  575,  33  Kan.  395,  52 
Am.  Rep.  533. 

Petition  to  set  aside  conveyances  of  full-blood  inherited  lands,  executed  by 
adult  heirs  on  good  consideration  October  5,  1909,  approved  by  a  proper  court, 
failing  to  allege  proper  grounds  for  avoiding  conveyance,  held  demurrable. 
McCosar  v.  Chapman,  59  Okl.  78,  157  P.  1059. 

Petition  for  recovery  of  unallotted  lands  of  Creek  Nation,  purchased  by  de- 
fendant, alleging  actual  notice  that  plaintiff  held  certificate  of  purchase  un- 
der assignment  from  original  purchaser,  held  to  state  a  cause  of  actioa. 
Smiley  v.  Scott,  59  Okl.  160,  158  P.  919. 

Petition  based  on  fraud  in  substitution  of  one  policy  of  life  insurance  for 
another,  alleging  facts  entitling  plaintiff  to  rescission  held  sufficient,  not- 
withstanding prayer  for  punitive  damages,  costs,  etc.  Myler  v.  Fidelity  Mut. 
Life  Ins.  Co.  of  Philadelphia,  64  Okl.  293,  167  P.  601. 

22  in  an  action  to  reform  a  deed,  the  petition  alleged  that  defendant  in 
measuring  the  land  conveyed  used  a  false  measure,  so  that  the  description 
in  the  deed  did  not  include  all  the  land  which  plaintiff  intended  and  ex- 
pected to  purchase;    and  that  if  plaintiff  had  known  of  such  deficiency  he 
would  not  have  made  the  purchase.     Held,  that  the  petition  states  a  suffi- 
cient ground  for  the  relief  sought.    Taylor  v.  Deverell,  23  P.  628,  43  Kan.  469. 

A  petition  containing  the  usual  allegations  for  judgment  on  a  note,  and  al- 
leging that,  at  the  time  of  its  execution  and  delivery,  it  was  agreed  between 
the  parties  thereto  that  the  interest  to  become  due  on  the  principal  indebted- 
ness should  be  paid  annually ;  that  it  was  the  intention  of  all  the  parties  to 
the  note  that  it  should  be  drawn  so  as  to  read  "with  interest  payable  annu- 
ally" ;  and  that,  by  mutual  mistake  of  the  parties,  and  by  mistake  of  the 
scrivener,  there  was  inserted  the  clause,  "with  interest  at  the  rate  of  8  per 
cent,  per  annum  from  date  until  paid" — states  a  cause  of  action  for  the  ref- 
ormation of  the  note.  Wendt  v.  Diemer,  58  P.  1003,  9  Kan.  App.  481. 

23  it  is  error  by  the  trial  court  to  overrule  a  motion  to  make  the  petition, 
in  an  action  for  divorce,  more  definite  and  certain,  that  charges  "that  during 
the  time  the  defendant  lived  with  the  plaintiff  as  his  wife  he  was  guilty  of 
extreme  cruelty  towards  the  plaintiff."     Callen  v.  Callen,  24  P.  360,  44  Kan. 
370.     In  a  petition  for  divorce  for  extreme  cruelty,  the  particular  acts  com- 
plained of,  and  the  dates  of  their  commission,  should  be  stated  with  reason- 
able certainty.    Id.     In  a  petition  for  divorce  for  gross  neglect  of  duty,  the 
particular  acts  complained  of,  and  the  dates  of  their  commission,  should  be 
stated  with  reasonable  certainty.     Id.    It  is  error  by  the  trial  court  to  over- 
rule a  motion  to  make  the  petition,  in  an  action  for  divorce,  more  definite 
and  certain,  that  charges  "that,  during  the  time  the  defendant  lived  with  the 
plaintiff  as  his  wife,  he  was  guilty  of  gross  neglect  of  duty"   towards  the 
plaintiff.    Id. 

A  complaint  for  divorce  which  alleges  "that  on  or  about  [a  specified  date], 
and  on  divers  other  occasions  prior  and  subsequent  thereto,  defendant  was 
guilty  of  cruel  and  inhuman  treatment  to  the  plaintiff,  in  this,  to  wit,  slapped 


Art.  4)  PETITION  §  575 

said  plaintiff;  that  for  a  long  time  past  said  defendant  has  cursed  and 
abused  said  plaintiff  by  calling  her  vile  names ;  and  that  defendant  fails,  re- 
fuses, and  neglects?  to  provide  for  the  plaintiff  and  children  according  to  his 
station  in  life" — held  sufficient,  in  the  absence  of  a  motion  to  make  more  defi- 
nite. Irwin  v.  Irwin,  37  P.  548,  2  Okl.  180. 

A  complaint  for  divorce  which  charged  that  the  defendant  had  been  guilty 
of  cruel  and  inhuman  treatment  toward  plaintiff,  and  alleged  facts  showing 
that  defendant  had  slapped  plaintiff,  had  violently  cursed  and  abused  her, 
and  had  failed  and  refused  to  provide  for  her  and  her  children,  was  sufficient 
to  give  the  probate  court  jurisdiction  to  hear  the  cause  upon  the  statutory 
ground  of  extreme  cruelty.  TJhl  v.  Irwin,  41  P.  376,  3  Okl.  388,  following  Ir- 
win v.  Same,  37  P.  548,  2  Okl.  180 ;  Id.,  41  P.  369,  3  Okl.  186. 

24  Petition  in  action  on  foreign  judgment  held  not  subject  to  demurrer. 
Shufeldt  v.  Bank  of  Mound  City,  61  Okl.  194,  160  P.  923. 

25  The  petition  in  a  Cherokee  Indian's  action  to  establish  a  trust  in  land 
based  on  an  erroneous  action  of  the  department  held  sufficient  to  state  a  cause 
of  action,  where  it  sets  forth  with  particularity  the  acts  of  the  department, 
including  the  evidence  on  which  it  acted.    White  v.  Starbuck,  41  Okl.  50,  133 
P.  223. 

Petition,  alleging  that  plaintiffs  and  defendants  were  only  heirs  of  a  de-N 
cedent  who  owned  a  school  land  lease,  defendant  for  use  of  heirs  held  lease 
in  her  name  and  agreed  to  purchase  with  money  of  her  own  and  of  all  the 
heirs  for  use  of  herself  and  other  heirs,  and  by  fraud  and  contrary  to  her 
agreement  took  title  to  herself,  and  for  an  accounting,  stated  a  cause  of  ac- 
tion. Clark  v.  Frazier  (Okl.)  177  P.  589. 

Petition  to  impress  trust  in  favor  of  plaintiffs  on  land  patented  to  defend- 
ants held  to  state  cause  of  action.  Bozarth  v.  Mitchell,  59  Okl.  60,  157  P. 
1051. 

A  pleading  sufficient  to  withstand  demurrer  under  the  statute  of  frauds 
is  sufficient  under  the  statute  of  uses  and  trusts  (Comp.  Laws  1909,  §  7267). 
Purcell  v.  Corder,  124  P.  457,  33  Okl.  68. 

26  Petition  in  action  for  specific  performance  of  a  contract  for  the  con- 
veyance of  land,  based  upon  letters  attached  thereto,  held  not  to  set  up  an 
enforceable  contract  of  sale.    Bowker  v.  Linton  (Okl.)  172  P.  442. 

Petition  in  an  action  for  a  specific  performance  of  a  contract  for  the  sale 
of  realty  held  not  to  show  a  completed  agreement.  Plante  v.  Fullerton,  46 
Okl.  11,  148  P.  87. 

A  petition  which  alleges  that  plaintiff  is  now,  and  has  been  since  the  2d 
day  of  August,  1897,  the  owner  in  fee  and  entitled  to  the  possession  of  cer- 
tain land,  describing  it,  and  that  the  defendants,  on  the  6th  day  of  August, 
1897,  and  on  divers  other  days  between  that  day  and  the  commencement  of 
the  suit,  with  force  and  arms,  and  against  the  consent  of  plaintiff,  broke  and 
entered  upon  said  premises,  and,  with  teams  of  horses  and  mules  and  plows, 
then  and  there  turned  over  and  plowed,  with  said  teams  and  plows,  about 
30  acres  of  said  land,  to  the  damage  of  plaintiff  of  $100,  does  not  state  a 
cause  of  action  for  either  injury  to  the  possession  or  for  damages  to  the 
real  estate;  and  a  demurrer  thereto,  on  the  ground  that  the  petition  does  not 
state  a  cause  of  action,  should  be  sustained.  Casey  v.  Mason,  59  P.  252,  8 
Okl.  665. 

(421) 


§  575  PLEADINGS  (Ch.  11 

In  an  action  on  a  contract,  a  petition  which  is  sufficiently  ex- 
plicit to  raise  an  issue  of  fact  on  which  plaintiff  would  be  entitled 
to  recover  is  not  demurrable.27 

27  Thompson  v.  De  Long,  140  P.  421,  40  Okl.  718. 

Where  a  contract  provides  for  the  maintenance  of  the  thing  contracted  for 
after  construction,  a  petition  in  an  action  on  the  contract  to  recover  the  con- 
sideration is  not  demurrable  for  the  reason  that  the  petition  states  that  the 
contract  has  been  and  is  being  performed ;  the  words  "is  being  performed" 
having  reference  to  the  maintenance  of  the  thing  contracted  for.  Piper  v. 
Choctaw  Northern  Townsite  &  Improvement  Co.,  85  P.  965,  16  Okl.  436. 

Where  a  petition  alleged  a  contract  of  employment  for  the  sale  of  real  es- 
tate and  sets  forth  a  full  performance  and  the  accomplishment  of  all  re- 
quired by  the  contract,  it  is  sufficient  as  against  demurrer  to  show  a  cause  of 
action  for  compensation.  Yoder  v,  Randol,  83  P.  537,  16  Okl.  308,  3  L.  R.  A. 
(N.  S.)  576. 

A  petition,  alleging  that  a  person  who  wrote  his  name  across  the  back  of  a 
nonnegotiable  note  indorsed  the  note  with  intent  to  become  liable  thereon  as 
indorser,  states  a  cause  of  action.  Steele  v.  Hudson,  30  Okl.  518,  120  P.  616. 

A  petition  setting  forth  a  cause  of  action  on  a  note,  alleging  that  it  was 
executed  August  4,  1902,  and  fell  due  September  20,  1902,  a  copy  of  which  is 
attached  to  the  petition  and  reads.  "On  September  20th  we  promise  to  pay," 
the  year  of  maturity  being  left  out,  is  good  as  against  a  general  demurrer. 
A.  Helm  &  Son  v.  Briley,  87  P.  595,  17  Okl.  314. 

Petition  held  to  state  a  cause  of  action  against  the  indorser  of  a  nego- 
tiable note  executed  while  Wilson's  Rev.  &  Ann.  St.  1903,  §§  3607,  3622,  were 
in  force.  Turner  v.  First  Nat.  Bank,  139  P.  703,  40  Okl.  498. 

Petition  held  not  demurrable  for  failure  to  allege  delivery  to  plaintiff,  of 
a  note  sued  on,  or  that  plaintiff  was  the  owner  and  holder,  where  plaintiff 
was  the  payee,  and  the  execution,  default  in  payment,  and  the  amount  due 
were  duly  alleged.  Western  &  Southern  Fire  Ins.  Co.  v.  Murphey,  56  Okl. 
702,  156  P.  885. 

A  petition  by  a  creditor,  alleging  that  a  national  bank  as  principal  creditor 
of  an  insolvent  merchant  had  taken  over  the  merchant's  stock  and  agreed  to 
pay  all  creditors  subject  to  a  condition  which  had  been  fulfilled,  held  to  state 
a  cause  of  action  against  the  bank.  Parker  Gordon  Cigar  Co.  v.  First  Nat. 
Bank  of  Claremore,  55  Okl.  468,  154  P.  1153. 

Allegations  that  plaintiffs  were  the  owners  of  a  note,  that  it  was  wrong- 
fully taken  and  converted  by  defendant,  and  was  of  the  reasonable  value 
stated,  were  sufficient,  at  least  against  a  general  demurrer.  Capps  v.  Vasey 
Bros.,  101  P.  1043,  23  Okl.  554. 

Petition  in  action  against  a  county  for  services  of  a  detective  agency  held 
not  to  state  a  cause  of  action  on- express  contract  or  quantum  meruit.  Smith 
v.  Board  of  Com'rs  of  Oklahoma  County,  56  Okl.  672,  156  P.  186. 

A  petition,  in  a  railroad  company's  action  on  a  bonus  note,  held  sufficient 
as  against  objections  that  it  was  indefinite  and  uncertain  and  failed  to  state 
a  cause  of  action.  Coyle  v.  Arkansas  V.  &  W.  Ry.  Co.,  139  P.  294,  41  Okl. 
648. 

Petition,  in  an  action  for  material  sold  to  the  defendant  board  of  educa- 
tion, held  sufficiently  definite  in  its  statement  that  the  material  was  ordered 

(422) 


Art.  4)  PETITION  §  576 

§  576.    Fraud— Form 

The  specific  facts  constituting  fraud  and  illegality  must  be  set 
forth.28 

A  petition  attempting  to  plead  cause  of  action  for  fraud,  must 
show  damage  resulting  to  plaintiff  from  such  alleged  fraudulent 
acts,29  and  must  state  that  plaintiff  believed  the  fraudulent  repre- 
sentations if  such  are  alleged,  and  relied  and  acted  on  same  to  his 

i 

by  the  president.     Board  of  Education  of  City  of  Clinton  v.  Houilston,  51 
Okl.  329,  151  P.  1035. 

28  State  v.  Williams,  18  P.  727,  39  Kan.  517. 

The  mere  averment  that  the  board  did  not  fully  and  carefully  investigate 
and  consider  all  the  matters  and  things  relating  to  the  controversy  is  not 
such  a  charge  of  fraud  as  to  impeach  the  award  of  arbitrators.  Washington 
Nat.  Bank  v.  Myers,  104  Kan.  526,  180  P.  268. 

Where  a  grantor  of  land  sues  to^  set  aside  the  deed  on  the  ground  that  he 
was  fraudulently  induced  to  trade  for  land  not  worth  as  much  as  repre- 
sented, but  the  complaint  does  not  allege  the  value  of  the  property  which  he 
conveyed,  nor  state  the  difference  between  the  value  of  that  conveyed  and 
that  which  he  received,  and  also  alleges  that  he  was  to  have  one-half  of 
the  property  exchanged  for  a  block  in  which  he  had  a  half  interest,  and  that 
defendants  had  fraudulently  induced  him  to  accept  less  than  one-half  of  what 
he  received,  but  does  not  state  that  the  defendants  agreed  to  give  him  one- 
half  of  what  was  received,  the  complaint  is  defective,  in  that  there  is  a  con- 
fusion of  theories,  and  that  there  are  insufficient  facts  alleged  to  sustain  any 
theory.  Grentner  v.  Fehrenschield,  68  P.  619,  64  Kan.  764.  Where  a  grantor 
seeks  to  set  aside  the  deed  because  of  fraud  of  defendants,  based  on  misrep- 
resentations, he  must  allege  and  prove  what  the  misrepresentations  were, 
that  they  were  false,  that  he  believed  them  to  be  true,  and  that  he  relied  and 
acted  upon  them.  Id. 

Petition  in  action  for  fraud  held  not  to  state  cause  of  action,  so  that  de- 
murrer thereto  was  properly  sustained.  Martin  v.  Ford  Motor  Co.  (Okl.)  167 
P.  992. 

Petition  in  action  for  damages  from  fraud  in  connection  with  an  exchange 
of  properties,  held  to  state  a  cause  of  action.  Lamb  v.  Dodson,  139  P.  125, 
41  Okl.  639. 

In  an  action  for  injuries,  allegations  in  the  petition  of  fraud  in  the  pro- 
curement of  a  release  from  plaintiff  held  sufficient.  St  Louis  &  S.  F.  K.  Co. 
v.  Reed,  132  r.  355,  37  Okl.  350. 

Petition,  in  action  for  conspiracy  to  defraud  plaintiff  of  his  stock  in' a  bank 
and  oust  him  from  his  position  as  president,  held  to  state  a  cause  of  action. 
Felt  v.  Westlake  (Okl.)  174  P.  1041. 

In  an  action  by  a  lessor  to  cancel  a  gas  and  oil  lease,  the  petition  alleged 
the  execution  of  the  lease,  giving  a  copy  thereof.  No  facts  outside  of  the 
lease  indicating  fraud  or  mistake,  or  that  the  interests  of  the  lessor  would 
be  injuriously  affected  by  the  provisions  of  the  lease,  were  stated  in  the  peti- 
tion. Held,  that  a  demurrer  was  properly  sustained.  Eingle  v.  Quigg,  87  P. 
724,  74  Kan.  581. 

29  Martin  v.  Ford  Motor  Co.  (Okl.)  167  P.  992. 

(423) 


§    576  PLEADINGS  (Ql.  11 

damage.30  But  in  an  action  to  cancel  a  deed  alleged  to  have  been 
procured  by  false  and  fraudulent  promises  a  specific  averment  that 
the  grantee  did  not  intend  at  the  time  he  made  said  promise  or  con- 
tract to  carry  it  out  is  not  necessary  if  from  the  facts  alleged  the 
existence  of  his  fraudulent  intent  not  to  carry  out  his  contract  can 
be  clearly  inferred.31 

CLAUSE  OF  PETITION  ALLEGING  FRAUD 

Plaintiff  further  alleges  that  the  signing  of  said  contract  was 
obtained  from  plaintiff  by  fraud,  circumvention  and  misrepresenta- 
tion, as  follows :  That  the  said  plaintiff  had  agreed  with  defend- 
ant to  employ  defendant  to  act  as  foreman  for  plaintiff  on  certain 

properties  of  plaintiff  in county,  Oklahoma,  at  a  stipulated 

salary  of  $ per  month,  and  that  a  written  contract  covering 

said  employment  should  be  drawn  and  executed  by  said  parties, 

and  afterwards,  to  wit,  on  or  about  the day  of ,  19 — , 

the  said  defendant  came  to  the  city  of ,  Oklahoma,  to  the  said 

plaintiff,  for  the  purpose  of  having  said  contract  signed,  and  ex- 
hibited to  said  plaintiff  a  paper  writing,  and  informed  plaintiff 
that  it  contained  the  contract  agreed  upon  as  above  alleged,  and 
that  the  plaintiff,  believing  that  it  was  the  same  contract,  signed 
the  same;  and  that  afterwards  plaintiff  discovered  that,  in  the 
signing  of  said  contract  by  him  and  defendant,  the  defendant  had 
willfully  and  fraudulently  substituted  an  entirely  different  con- 
tract from  the  one  agreed  upon  by  the  parties ;  and  that  by  reason 
of  such  willful  and  fraudulent  substitution  said  plaintiff  at  the  time, 
without  any  knowledge  of  the  wrongful  act  on  the  part  of  the  de- 
fendant, and  believing  that  the  contract  as  presented  was  the  one 
which  had  been  agreed  upon,  signed  the  contract  as  presented 
which  contained  the  provision  that  (set  forth  provision  fraudu- 
lently inserted)  ;  that  the  said  plaintiff  did  not  intend  to  make  or 
deliver  said  contract,  but  without  negligence  on  his  part,  and  sole- 
ly by  reason  of  the  deception,  artifice,  and  fraud  of  the  defendant 
in  falsely  representing  that  said  paper  contained  the  contract 
agreed  upon  between  them,  as  above  alleged,  and  then  and  there 
substituting  therefor  said  contract  containing  said  provision  (as 

so  McCracken  v.  Cline,  55  Okl.  37,  154  P.  1174. 

3i  Blackburn  v.  Morrison,  118  P.  402,  29  Okl.  510,  Ann.  Gas.  1913A,  523. 

(424) 


Art.  4)  PETITION  §  577 

above  stated),  and  'by  reason  of  the  trust  and  confidence  placed  by 
said  plaintiff  in  said  defendant  the  said  plaintiff  signed  said  con- 
tract. 

§  577.    Limitations — Form 

Where  the  petition  shows  that  the  cause  of  action  is  barred  by 
the  statute  of  limitations,  the  burden  is  on  plaintiff  to  plead  facts 
relieving  such  action  from  the  bar  of  the  statute  in  order  to  suc- 
cessfully defeat  a  general  demurrer  to  the  petition.32 

In  an  action  for  relief  on  the  ground  of  fraud,  where  a  discovery 
of  the  fraud  must  be  alleged  to  avoid  the  bar  of  limitations,  the  cir- 
cumstances under  which  the  fraud  was  discovered  need  not  be 

82  Delzell  v.  Conch  (Okl.)  173  P.  361. 

Sufficient. — Where  plaintiff  alleged  that  he  commenced  an  action  on  certain 
town  warrants  within  due  time  and  had  failed  in  such  action  otherwise  than 
on  the  merits,  and  it  appeared  that  the  new  action  was  commenced  within 
one  year  after  failure  of  the  former  action,  defendant's  demurrer  raising  thr 
question  of  laches  and  limitations  was  improperly  sustained.  De  Roberts  v. 
Town  of  Cross,  101  P.  1114,  23  Okl.  888. 

Where  more  than  five  years  have  elapsed  from  maturity  of  the  note  as- 
shown  by  the  pleading  and  the  time  of  bringing  action,  but  facts  are  alleged 
suspending  the  running  of  the  statute,  so  that  the  bar  had  not  expired  at  the- 
commencement  of  the  action,  a  demurrer  on  the  ground  that  petition  shows 
that  action  is  barred  by  limitations  should  be  overruled.  Christie  v.  Scott. 
94  P.  214,  77  Kan.  257. 

A  petition  on  an  implied  contract,  disclosing  a  liability  of  more  than  three 
years'  standing,  which  alleges  that  defendant  has  continuously  resided  out  of 
the  state  since  a  time  prior  to  the  accrual  of  the  cause  of  action,  shows  that 
limitations  may  not  have  run,  so  as  to  prevent  that  defense  being  raised  by 
demurrer.  Reed  v.  Humphrey,  76  P.  390,  69  Kan.  155. 

An  allegation  that  plaintiff  did  not  discover  the  falsity  of  the  representa- 
tions until  a  certain  date  held  to  negative  constructive,  as  well  as  actual, 
notice  within  the  statute  of  limitations  (Code  Civ.  Proc.  Kan.  §  17,  subd.  3 
[Gen.  St.  Kan.  1909,  §  5610]).  Gillies  v.  Linscott,  146  P.  327,  94  Kan.  217. 

In  an  action  against  a  husband  and  wife  to  foreclose  a  mortgage  executed 
by  both  on  the  wife's  property,  a  payment  made  by  the  husband  was  relied 
on  to  take  the  note  out  of  the  statute  of  limitations.  The  wife  pleaded  that 
she  was  surety,  only,  on  the  note,  and  that  the  payments  were  not  made  by 
her  or  for  her,  or  with  her  knowltdge  or  consent.  The  plaintiff  replied  that 
the  money  obtained  on  such  note  and  mortgage  went  to  pay  off  a  valid  lien 
on  the  wife's  property.  Held  error  for  the  court  to  exclude  evidence  tending 
to  support  such  reply.  Hawkins  v.  King,  64  P.  32,  62  Kan.  526. 

Plaintiff's  allegation  to  avoid  limitations  by  showing  that  the  relation  be- 
tween him  and  defendant  is  one  of  trust  and  confidence,  and  that  the  exist- 
ence of  the  debt  was  fraudulently  concealed,  held  sufficient  as  against  a  gen- 
eral demurrer.  Valley  Abstract  Co.  v.  Page,  141  P.  416,  42  Okl.  365. 

Insufficient. — A  statement  in  a  petition  that  when  a  debt  accrued  defendant 

(425) 


§    577  PLEADINGS  (Ch.  11 

stated ;  nor  need  plaintiff  negative  the  fact  that  it  might  have  been 
discovered  earlier.33 

However,  where  plaintiff  alleges  that  the  fraud  was  consummated 
more  than  two  years  prior  to  the  commencement  of  the  action,  but 
fails  to  state  when  the  fraud  was  discovered,  the  petition  is  vulner- 
able to  demurrer.34  But  where  a  petition  in  an  action  to  recover  for 
fraud  on  its  face  does  not  show  that  the  cause  of  action  is  barred 
by  limitations,  a  demurrer  on  that  ground  should  be  overruled.35 

In  action  on  note  which  on  its  face  shows  that  it  is  barred  by 

resided  in  another  state,  which  he  afterwards  left,  held  insufficient  to  inter- 
rupt the  running  of  limitations,  where  more  than  five  years  have  elapsed 
since  such  change  of  residence.  Perry  v.  Robertson,  150  P.  223,  93  Kan.  703. 

Allegations  that  at  the  time  of  the  accrual  of  plaintiff's  cause  of  action  she 
was  a  "morphine  fiend"  afflicted  with  "morphinomania,"  and  was  wholly  un- 
der defendant's  influence,  and  did  not  realize  her  condition  or  the  wrong 
done  her,  held  a  sufficient  pleading  of  that  "legal  disability"  or  "unsound 
mind"  which  will  suspend  the  running  of  limitations  under  Code  Civ.  Proc. 
Kan.  §  18  (Gen.  St.  Kan.  1909,  §  5611).  Gillmore  v.  Gillmore,  139  P.  386,  91 
Kan.  707,  51  L.  R.  A.  (N.  S.)  834,  modifying  judgment  on  rehearing  137  P. 
958,  91  Kan.  293,  295,  51  L.  R.  A.  (N.  S.)  838. 

ss  Ottawa  Condensing  Co.  v.  Dawkins,  120  P.  356,  86  Kan.  312. 

The  petition  in  an  action  on  fraud,  brought  more  than  two  years  after  its 
perpetration,  need  not  set  out  manner  of  discovery  to  avoid  bar  of  limita- 
tions. Pickens  v.  Campbell,  159  P.  21,  98  Kan.  518. 

S*  Doyle  v.  Doyle,  7  P.  615,  33  Kan.  721. 

In  action  for  fraud  in  exchange  of  property,  where  pleading  on  its  face 
showed  that  alleged  fraud  was  more  than  two  years  before  commencement  or 
action,  pleader,  to  escape  the  two  years'  limitation,  must  allege  discovery  of 
fraud  less  than  two  years  before  action.  Comelssen  v.  Harman,  103  Kan. 
624,  176  P.  141. 

Since,  under  Rev.  Laws  1910,  §  4657,  judgment  obtained  by  fraud  is  void- 
able only  if  suit  of  judgment  debtor  be  brought  within  two  years  after  dis- 
covery of  fraud,  where  suit  is  instituted  more  than  two  years  after  rendition 
of  judgment,  petition  failing  to  show  discovery  of  fraud  within  two  years 
prior  to  suit  is  subject  to  general  demurrer.  Stauffer  v.  Watts  (Okl.)  174 
P.  1031. 

A  petition  based  on  fraud,  which  shows  that  the  fraudulent  transaction 
complained  of  occurred  more  than  two  years  before  the  commencement  of 
suit,  but  fails  to  allege  that  the  fraud  was  discovered  within  that  period, 
so  as  to  take  the  case  out  of  the  statute,  is  insufficient.  McCalla  v.  Daugh- 
erty,  46  P.  30,  4  Kan.  App.  410,  writ  of  error  dismissed  Tipton  v.  McCalla,  54 
P.  1054,  59  Kan.  719. 

In  an  action  brought  May  20,  1911,  for  fraudulent  conversion  on  April  7. 
1908,  held  that  an  allegation  that  plaintiff  did  not  discover  the  fraud  until 
October  1,  1910,  brought  the  case  within  the  statute  of  limitations  (Rev.  Laws 
1910,  §  4657).  Maddox  v.  Smith,  46  Okl.  678.  148  P.  842. 

SB  Shawnee  Life  Ins.  "Co.  v.  Taylor,  58  Okl.  313,  160  P.  622. 

(426) 


Art.  4)  PETITION  §  577 

limitations  as  pleaded,  plaintiff  must  plead  facts  relieving  the  ac- 
tion fro.m  the  bar  of  the  statute.36  Thus,  in  action  on  Ohio  note, 
which  on  its  face  is  barred  by  pleaded  statute  of  limitations,  it  is 
not  enough  for  plaintiff  to  plead  and  prove  that  action  was  not 
barred  in  Ohio,  where  defendant  had  resided,  but  he  must  plead 
and  prove  that  defendant  has  not  been  in  Oklahoma  long  enough 
to  bar  action  under  its  statute.37 

In  an  action  against  a  resident  on  a  contract  executed  outside 
the  territory,*  when  defendant  was  a  nonresident,  plaintiff  is  not 
required  to  plead  or  prove  facts  showing  that  the  obligation  is 
not  barred  by  the  laws  of  the  state  where  defendant  formerly  re- 
sided, as  such  question  is  a  matter  of  defense.38 

A  party  who  pleads  a  shorter  period  of  limitation  than  the  one 
applicable  to  the  case  waives  the  benefit  of  the  longer  and  correct 
one,  which  might  have  been  pleaded.39 

Where  none  but  the  five-year  statute  of  limitations  of  the  state 
is  pleaded  on  foreclosure,  the  court  cannot  give  the  pleader  the 
benefit  of  the  six-year  statute  of  another  state.40 

A  petition  on  a  policy  of  insurance  which  shows  that  the  action 
was  not  commenced  within  the  time  limited  by  the  policy  is  in- 
sufficient.41 

PETITION — CLAUSE   IN   AVOIDANCE    OP   LIMITATIONS 

That  on  the  date  upon  which  the  cause  of  action  accrued  upon 
the  aforesaid  note,  the  said  defendant  was  out  of  and  absent  from 
the  state  of  Oklahoma  and,  ever  since  said  date  and  up  to  within 
thirty  (30)  months  next  preceding  the  filing  of  this  petition  here- 
in, the  said  defendant  has  remaine'd  and  been  out  of  and  absent 
from  the  state  of  Oklahoma,  and  that  the  said  defendant  has  not 
lived  in  or  been  in  the  state  of  Oklahoma  for  a  period  of  or  for 
periods  aggregating  five  (5)  years  prior  to  the  filing  of  this  peti- 

se  Shaw  v.  Dickinson  (Okl.)  164  P.  1150. 

3?  Id.  In  an  action  brought  after  expiration  of  the  limitation  period  on  a 
note  on  which  is  indorsed  a  receipt  of  a  payment,  the  petition  must  allege 
payment  by  the  debtor  to  remove  the  bar  of  the  statute.  Liphart  v.  Myers, 
156  P.  693,  97  Kan.  686. 

ss  Keagy  v.  Wellington  Nat.  Bank,  69  P.  811,  12  Okl.  33. 

39  Downey  v.  Atchison,  T.  &  S.  F.  R.  Co.,  57  P.  101,  60  Kan.  499. 

40  Grigsby  v.  Williams,  89  Kan.  758,  132  P.  1001. 

41  Oakland  Home  Ins.  Co.  v.  Allen,  40  P.  928,  1  Kan.  App.  108. 

(427) 


§    578  PLEADINGS  (Ch.  11 

tion  herein,  and  that  the  cause  of  action  herein  stated  and  alleged 
is  not  barred  by  the  statute  of  limitations. 

§  578.     Matters  necessary  to  be  pleaded 

Matters  which  must  be  proven  to  entitle  plaintiff  to  recover  must 
be  alleged  in  the  petition.  This  rule  has  been  applied  to  local  cus- 
toms,42 recovery  of  money  on  notes43  and  otherwise,44  recovery 
for  necessities,45  money  paid,46  insurance,47  loss  of  business,48  re- 

*2  A  local  custom  or  usage  applying  to  a  special  or  particular  class  of  busi- 
ness may  not  be  proven  to  explain  ambiguous  terms  of  a  contract,  unless 
pleaded.  Gilbert  v.  Citizens'  Nat.  Bank  of  Chickasha,  61  Okl.  112,  160  P.  635, 
L.  R.  A.  1917A,  740. 

Evidence  of  a  custom  of  fire  insurance  agents  to'renew  policies  of  insurance 
without  notifying  the  insured  was  inadmissible  where  not  pleaded.  School 
Dist.  No.  22,  Love  County,  v.  Culwell,  62  Okl.  283,  162  P.  949. 

A  local  custom  or  a  custom  applying  to  a  special  class  of  business  may  not 
be  the  basis  of  recovery,  unless  such  custom  is  pleaded,  and  the  exclusion  of 
evidence  of  such  custom  in  the  absence  of  pleading  the  same  is  not  error. 
Smith  v.  Stewart,  116  P.  182,  29  Okl.  26. 

43  In  an  action  by  an  indorsee  against  the  indorser,  the  petition  must  al- 
lege notice  of  dishonor  by  the  maker  or  facts  excusing  notice.  Grimes  v.  Tait, 
99  P.  810,  21  Okl.  361. 

A  petition,  setting  out  the  payee's  special  warranty  on  the  transfer  of  the 
note,  but  not  alleging  its  breach,  does  not  state  a  cause  of  action  against  the 

4*  A  petition  by  a  trustee  in  bankruptcy  to  recover  money  alleged  to  be  a 
preferential  transfer  must  show  that,  if  the  transfer  stands,  the  creditor  will 
receive  a  greater  percentage  of  his  debt  than  other  creditors  of  the  same 
class.  West  v.  Bank  of  Lahoma,  85  P.  469,  16  Okl.  328. 

45  The  petition  in  a  wife's  action  to  recover  from  her  husband  sums  ex- 
pended by  her  for  her  own  support  must  show  that  the  expenditures  were 
involuntarily  made  for  articles  necessary  to  her  support  when  she  was  en- 
titled to  pledge  her  husband's  credit  therefor.  Sodowsky  v.  Sodowsky,  51  Okl. 
689,  152  P.  390. 

Where  a  petition,  based  on  a  foreign  contract,  against  a  minor  for  legal 
services,  sought  to  recover  on  an  express  contract,  or  .on  a  quantum  meruit, 
and  did  not  plead  the  lex  loci  contractus,  showing  that  the  services  were 
"necessary,"  held,  that  it  did  not  state  a  cause  of  action.  Marx  v.  Hefner, 
46  Okl.  453,  149  P.  207,  Ann.  Cas.  1917B,  656. 

4«  A  common  count  for  money  paid  out  and  expended  at  the  instance  or 
request  of  a  third  person  and  for  his  use,  in  order  to  withstand  a  demurrer, 
must  aver  such  facts  as  will  show  either  an  express  agreement  or  an  implied 
obligation  to  pay  the  sum  claimed,  and  should  aver  not  only  that  the  money 
was  paid  at  the  request  of  the  defendant,  but  that  it  was  paid  for  his  use 
and  benefit.  Fox  v.  Easter,  62  P.  283,  10  Okl.  527. 

47  See  note  47  on  following  page. 

48  Where  loss  of  business  is  averred,  names  of  the  parties  withdrawing 
their  patronage  should  be  given.    Kee  v.  Armstrong,  Byrd  &  Co.  (Okl.)  151 
P.  572. 

(428) 


Art.  4)  PETITION  §  578 

payee.  Clark  v.  Sallaska  (Okl.)  174  P.  505,  4  A.  L.  R.  746.  In  suit  to  enforce 
a  liability  against  the  payee,  an  allegation  that  on  his  transfer  he  represented 
that  there  were  no  equities  between  himself  and  the  maker  states  no  cause 
of  action  against  the  payee,  without  further  alleging  setting  out  existing 
equities.  Id. 

An  undertaking  indorsed  on  a  note,  "For  value  received,  I  hereby  guaranty 
the  payment  of  the  within  note,"  waiving  demand  and  protest,  is  a  direct 
promise  to  pay  the  note,  and  not  a  guaranty ;  and,  in  an  action  on  such  un- 
dertaking, the  complaint  need  not  allege  the  insolvency  of  the  maker  of  the 
note,  or  an  effort  by  plaintiff  to  collect  the  note  from  the  maker.  Walter  A. 
Wood  Mowing  &  Reaping  Co.  v.  Farnham,  33  P.  867,  1  Okl.  375. 

47  The  petition,  in  an  action  on  a  life  insurance  policy,  held  demurrable 
where  plaintiff  declared  on  the  "binder"  alone,  without  setting  forth  the 
policy  subsequently  issued  pursuant  to  it  and  declaring  thereon.  JEtna  Life 
Ins.  Co.  v.  Bradford,  45  Okl.  70,  145  P.  316,  Ann.  Cas.  1918C,  373. 

Where  standard  fire  insurance  policy  prescribed  by  Rev.  Laws  1910,  §  3482, 
covered  loss  of  personal  property,  while  contained  in  described  building,  peti- 
tion not  stating  that  property  was  in  such  building  at  time  of  fire,  did  not 
state  cause  of  action.  American  Cent.  Ins.  Co.  v.  Boyle  (Okl.)  171  P.  714. 

Where  a  standard  fire  policy  insures  against  loss  while  merchandise  is  con- 
tained in  a  building  described  and  not  elsewhere,  a  petition  which  failed  to 
state  that  at  the  time  of  the  fire  the  merchandise  was  contained  in  such 
building  held  not  to  state  a  cause  of  action.  Miller  v.  Connecticut  Fire  Ins. 
Co.,  47  Okl.  42,  151  P.  605. 

Petition,  in  an  action  on  a  fire  insurance  policy,  held  demurrabie,  where  it 
failed  to  allege  that  the  insured  building  and  personalty  were  located  at  the 
time  of  the  fire  as  required  by  the  policy.  Gerrnania  Fire  Ins.  Co.  v.  Bar- 
ringer,  142  P.  1026,  43  Okl.  279. 

Conditions  in  fire  policy  prescribing  time  and  method  of  giving  notice  of 
loss,  etc.,  must  be  complied  with,  and  petition  exhibiting  policy  containing 
such  conditions  and  not  averring  compliance  is  subject  to  demurrer.  Shaw- 
nee  Fire  Ins.  Co.  v.  Beaty,  64  Okl.  61,  166  P.  84. 

Waiver  of  proof  of  loss  should  be  pleaded  by  person  relying  thereon.  Hart- 
ford Fire  Ins.  Co.  v.  Ma  this,  57  Okl.  332,  157  P.  134. 

Under  the  express  provisions  of  Comp.  Laws  1909,  §  3784,  the  plaintiff  in 
an  action  on  an  insurance  policy  is  relieved  from  alleging  the  performance 
of  promissory  warranties  or  conditions  subsequent  and  need  allege  perform- 
ance only  of  conditions  precedent.  Great  Western  Life  Ins.  Co.  v.  Sparks,  38 
Okl.  395,  132  P.  1092,  49  L.  R.  A.  (N.  S.)  724. 

To  support  an  action  on  a  policy  insured  must  allege  and  prove  compliance 
with  conditions  precedent,  or  a  waiver  thereof.  St.  Paul  Fire  &  Marine  Ins. 
Co.  v.  Mittendorf,  104  P.  354,  24  Okl.  651,  28  L.  R.  A.  (N.  S.)  651. 

Where  a  petition  in  an  action  on  a  hail  policy  set  out  the  policy  requiring 
a  written  notice  at  the  home  office  of  the  company  within  48  hours  after 
loss,  and  that  suit  shall  not  be  maintained  unless  notice  of  such  loss  is  given 
and  the  amount  ascertained  as  provided  by  the  policy,  it  is  demurrable  where 
it  contains  no  allegation  of  the  giving  of  the  notice  required  or  of  any  facts 
excusing  the  failure  to  obtain  one.  Gray  v.  Reliable  Ins.  Co.,  110  P.  728,  26 
Okl.  592. 

In  an  action  on  a  policy  of  insurance,  by  the  terms  of  which  concurrent  in- 
surance is  allowed,  and  where  it  is  provided,  in  substance,  that,  in  case  there 
is  concurrent  insurance,  the  loss  shall  be  prorated  between  the  companies 

(429) 


§    578  PLEADINGS  (Ch.  11 

covery  of  taxes  paid,49  conversion,50  use  and  occupation,51  actions 
on  bonds,52  action  for  prize,53  compromise  agreement,54  broker's 

issuing  the  different  policies,  and  that  the  defendant  company  shall  also  be 
entitled  to  the  benefits  of  limiting  clauses  in  the  policy  issued  by  the  other 
company,  where  the  plaintiff  in  fact  takes  a  policy  from  another  company,  it 
is  not  necessary  that  he  should-  allege,  in  his  petition,  that  he  holds  the  other 
policy,  nor  set  up  its  provisions.  It  is  for  the  defendant, '  by  its  answer,  to 
avail  itself  of  any  defense  it  may  have  by  reason  of  such  coinsurance.  JEtna 
Ins.  Co.  v.  McLead,  45  P.  73,  57  Kan.  95,  57  Am.  St.  Rep.  320. 

In  an  action  on  a  policy  providing  that,  in  case  of  disagreement  as  to 
amount  of  loss,  appraisers  shall  be  selected  to  ascertain  the  same,  etc.,  it  is 
not  necessary  that  the  declaration  negative  the  occurrence  of  disagreement 
requiring  an  arbitration.  Long  Island  Ins.  Co.  of  Brooklyn  v.  Hall,  46  P.  47, 
4  Kan.  App.  .641. 

49  Petition,  in  action  under  Laws  1913,  c.  240,  art.  1,  §  7,  to  recover  illegal 
taxes  paid,  held  to  state  a  cause  of  action.  Lusk  v.  Ryan  (Okl.)  171  P.  323. 
In  action  under  Laws  1913,  c.  24'0,  art.  1,  §  7,  to  recover  money  paid  on  ac- 
count of  an  illegal  tax,  it  is  not  necessary  that  the  petition  aver  that  such 
payment  was  made  under  duress.  Id. 

Petition,  in  an  action  to  recover  illegal  taxes  paid  under  protest,  held  de- 
murrable  for  failure  to  sufficiently  state  a  cause  of  action  based  on  willful 
and  illegal  act  of  county  board  of  equalization,  where  it  did  not  charge  mal- 
feasance, neglect,  or  misconduct  of  officers  having  authority  in  the  premises. 
Lusk  v.  Porter,  53  Okl.  294,  156  P.  224. 

so  The  petition  in  an  action  for  conversion  of  personalty  must  show  that 
plaintiff  has  been  deprived  of  possession  of  such  personalty.  McCracken  v. 
Cline,  55  Okl.  37,  154  P.  1174. 

si  An  occupant  of  lands  is,  without  special  contract  and  though  the  rela- 
tion of  landlord  and  tenant  does  not  exist,  liable  for  the  rents  to  any  person 
entitled  to  same ;  and  hence,  in  an  action  therefor,  it  is  not  essential  to 

52  In  ward's  action  on  guardian's  bond,  where  guardian's  devastavit  is  suf- 
ficiently averred,  it  is  not  necessary  to  allege  in  the  petition  that  the  devas- 
tavit has  not  been  paid,  that  being  a  matter  of  defense  to  be  pleaded  by  the 
surety.  Southern  Surety  Co.  v.  Jefferson  (Okl.)  174  P.  563. 

In  an  action  on  a  penal  bond,  it  must  be  alleged  and  pi-oved  that  plaintiff 
sustained  damages.  Kelley  v.  Seay,  41  P.  615,  3  Okl.  527. 

To  authorize  recovery  in  action  against  the  sureties  on  the  official  bond  of 
a  public  officer,  plaintiff  must  allege  in  his  petition  and  show  defaults  covered 
by  and  included  in  the  condition  of  the  bond  sued  on.  Board  of  Education 
of  City  of  Alva  v.  Fulkerson  (Okl.)  179  P.  599. 

s s  in  an  action  for  a  prize  pursuant  to  an  award  made  by  a  jury  selected 
imder  stated  conditions,  the  petition  must  either  allege  that  the  prize  was 
thus  awarded,  or  state  facts  showing  that  the  award  was  prevented  by  de- 
fendant's fault.  Southwestern  Land  Co.  v.  McCallam,  136  P.  1093,  41  Okl. 
657. 

s*  To  state  a  cause  of  action  based  on  a  compromise  agreement,  the  petition 
must  allege  a  liability  of  defendant,  an  agreement  of  the  amount  to  be  paid, 
and  an  acceptance  of  this  agreement  in  settlement  of  original  claim  or  dis- 
pute. Gunn  v.  Fryberger  (Okl.)  176  P.  248. 

(430) 


Art.  4)  PETITION  §  578 

action  for  commission,55  or  consideration ; 56   the  basis  of  recovery 
in  actions  for  wrongful  death,57  attachment,58  bond  to  release  at- 

allege  the  existence  of  such  relation  or  contract.     Bilby  v.  Gilliland,  137  P. 
690,  41  Okl.  150, 

In  an  action  by  the  owner  of  real  estate,  under  Comp.  Laws  1909,  §  4094, 
for  use  and  occupation,  it  is  not  necessary  to  allege  the  relationship  of  land- 
lord and  tenant  or  an  agreement  to  pay  rent.  Earl  v.  Tyler,  128  P.  269,  36 
Okl.  179.  In  an  action  for  use  and  occupation,  it  is  error  to  quash  an  attach- 
ment or  give  judgment  on  the  pleadings  for  failure  to  charge  that  the  relation 
of  landlord  and  tenant  existed,  or  an  agreement  to  pay  rent.  Id. 

so  A  petition  to  recover  broker's  commissions,  which  shows  that  plaintiff 
acted  for  both  parties,  is  demurrable  unless  it  also  alleges  that  the  dual  rela- 
tionship was  known  and  assented  to  by  both.  Skirvin  v.  Gardner,  129  P.  729, 
36  Okl.  613. 

56  Where  a  party  declares  on  a  contract  which  does  not  import  a  considera- 
tion, the  consideration  must  be  alleged.  Gunn  v.  Fryberger  (Okl.)  176  P.  248. 
Petition  alleging  defendant's  promise  to  pay  plaintiff's  expenses  consequent 
on  personal  injury  while  in  defendant's  employ,  but  not  alleging  a  considera- 
tion therefor  did  not  state  a  cause  of  action.  Id. 

67  in  an  action  brought  under  Code  Civ.  Proc.  §  422,  providing  that  an  ac- 
tion may  be  maintained  for  the  death  of  one  caused  by  the  wrongful  act  of 
another,  the  damages  recovered  to  inure  to  the  exclusive  benefit  of  the  wid- 
ow and  children,  if  any,  or  next  of  kin,  it  is  only  necessary  to  allege  that 
deceased  left  surviving  him  as  his  next  of  kin  the  plaintiff,  who  was  his 
mother.  Missouri  Pac.  Ry.  Co.  v.  Barber,  24  P.  969,  44  Kan.  612. 

Under  Code  Oiv.  Proc.  §  422,  it  is  not  required  that  the  petition  in  an  action 
by  parents  against  a  railroad  company  for  the  killing  of  their  child  by  a 
train  should  state  how  plaintiffs  were  injured  pecuniarily,  nor  is  it  necessary 
to  allege  special  damages.  Erb  v.  Morasch,  54  P.  323,  8  Kan.  App.  61. 

In  action  for  damages  for  the  death  of  plaintiffs  wife,  caused  by  the 
wrongful  act  of  another,  a  demurrer  to  the  petition  is  properly  sustained, 
where  it  fails  to  show  there  are  no  children,  under  Wilson's  Rev.  &  Ann.  St. 
1903,  §§  4611,  4612,  providing  that  such  damages  must  inure  to  the  benefit  of 
the  widow  and  children,  if  any,  or  next  of  kin.  Bartlett  v.  Chicago,  R.  I.  & 
P.  Ry.  Co.,  96  P.  468,  21  Okl.  415. 

Under  Rev.  Laws  1910,  §§  5281,  5282,  permitting  action  for  damages  for 
wrongful  death  by  widow  or  next  of  kin  where  there  is  no  representative  it  is 
necessary  to  plead  and  prove  that  no  representative  is  or  has  been  appoint- 
ed. Sanders  v.  Chicago,  R.  I.  &  P.  Ry.  Co.  (Okl.)  169  P.  891. 

Since  Gen.  St.  §§  2b,  3c,  4d,  vest  the  right  of  action  for  death  by  wrongful 

ss  Where  an 'attachment  is  levied  on  real  estate  as  the  property  of  a  non- 
resident defendant,  though  title  stands  in  the  name  of  another,  the  attaching 
creditor  acquires  a  lien  on  any  interest  the  debtor  may  have  in  such  land 
which  he  may  enforce  after  judgment,  in  a  suit  in  fhe  nature  of  a  creditors 
bill,  and  in  such  case  the  petition  need  not  aver  execution  issued  and  re- 
turned nulla  bona;  it  being  sufficient  to  aver  in  appropriate  language  the 
lack  of  any  other  available  assets.  Ziska  v.  Ziska,  95  P.  254,  20  Okl.  634,  23 
L.  R.  A.  (N.  S.)  1. 

(431) 


§    578  PLEADINGS  (Ch.  11 

tachment,59  judgment,60  usury,61  accord  and  satisfaction,62  dam- 
act  in  the  minor  children  of  deceased,  if  an  action  be  not  brought  by  the  re- 
lict within  six  months  after  the  -death  of  deceased,  a  complaint,  by  a  widow 
in  Kansas,  for  the  death  of  her  husband  in  Missouri,  which  alleges  that  he 
left  minor  children,  but  fails  to  show  that  she  sued  within  six  months,  is 
defective.  Hamilton  v.  Hannibal  &  St.  J.  R.  Co.,  18  P.  57,  39  Kan;  56. 

In  an  action  for  the  death  of  an  infant  child,  the  petition  must  clearly 
show  that  the  action  is  brought  within  two  years  from  the  date  of  death,  as 
required  by  Gen.  St.  1897,  c.  95,  §§  418,  419.  City  of  Eureka  v.  Merrifield, 
58  P.  243,  9  Kan.  App.  579. 

59  In  an  action  on  a  bond  given  to  release  property  attached,  a  prayer  to 
reform  the  bond  so  as  to  bind  the  principal  and  the  sureties  "to  pay  any 
judgment  that  might  be  rendered  in  the  case"  instead  of  "against  it,"  mean- 
ing the  defendant,  will  not  be  granted  where,  if  the  property  attached  ac- 
tually belonged  to  the  principal,  the  bond  was  in  proper  form,  and  if  it  was 
in  fact  the  property  of  other  parties,  plaintiff  should  have  so  stated  in  its 
original  petition.     Drovers'  Live  Stock  Commission  Co.  v.  Custer  County  State 
Bank,  91  P.  850,  19  Okl.  302. 

60  The  petition  in  an  action  on  a  judgment  against  a  decedent's  estate,  held 
not  demurrable,  though  it  failed  to  show  that  the  claim  on  which  the  judg- 
ment was  based,  was  duly  filed  with  the  administrator.     Chitty  v.  Gillett,  46 
Okl.  724,  148  P.  1048,  L.  R.  A.  1916A,  1181.    Petition  in  an  action  on  a  judg- 
ment held  not  demurrable  for  failure  to  state  that  the  judgment  was  final 
and  not  appealed  from,  where  it  alleged  facts  showing  the  judgment  to  be 
valid  and  subsisting.    Id. 

fii  Under  Rev.  Laws  1910,  §  1005,  a  written  demand  for  a  return  of  usury 
must  be  alleged  and  proven  to  authorize  a  recovery  of  same.  Mitchell  v. 
Clark,  52  Okl.  628,  152  P.  354. 

Petition  to  recover  usurious  interest  under  Rev.  Laws  1910,  §  1005,  failing 
to  allege  that  interest  has  been  paid,  is  demurrable.  Oklahoma  State  Bank  of 
Altus  v.  Curzen,  57  Okl.  100,  156  P.  1191. 

A  written  demand  for  the  return  of  usury  is  a  condition  precedent  to  a 
suit  therefor  under  Rev.  Laws  1910,  §  1005,  and  must  be  alleged  and  proven. 
Texmo  Cotton  Exch.  Bank  v.  Listen,  61  Okl.  33,  160  P.  82. 

A  petition  to  recover  usurious  interest  held  sufficient  where  it  alleged  that 
such  interest  had  been  paid,  and  that  the  taking  and  receiving  of  same  was 
knowingly  done.  First  Nat.  Bank  v.  Ingle,  132  P.  895,  37  Okl.  276. 

A  petition  to 'recover  alleged  usurious  interest  by  the  party  contracting  for 
its  payment  should  allege  that  it  had  been  paid,  and  that  the  receiving  of 
the  interest  was  knowingly  done ;  and,  where  these  averments  are  lacking, 
it  is  error  to  overrule  a  general  demurrer.  First  Nat.  Bank  v.  Landis,  113 
P.  718,  27  Okl.  710. 

A  petition  to  recover  alleged  usurious  interest  should  allege  that  it  had 
been  paid  and  that  the  receiving  of  the  same  was  knowingly  done.  First  Nat. 
Bank  v.  Ellis,  114  P.  620,  27  Okl.  699,  Ann.  Gas.  1912C,  687. 

62  TO  state  a  cause  of  action  based  on  accord  and  satisfaction,  the  petition 
must  allege  a  liability  of  defendant,  an  agreement  of  amount  to  be  paid,  and 
an  acceptance  of  this  agreement  in  settlement  of  original  claim  or  dispute. 
Gunn  v.  Fryberger  (Okl.)  176  P.  248. 

(432) 


Art.  4)  PETITION  §  578 

ages  in  general,68  injuries  to  passenger  64  and  to  shipment,65  breach 
of  contract,60  malicious  prosecution,67  action  under  federal  Ern- 
es Where,  in  an  action  against  a  carrier  for  delay  in  forwarding  plaintiff's 
baggage,  the  petition  alleges  that  by  negligence  of  the  company  plaintiff  was 
delayed  in  carrying  on  his  business,  whereby  he  was  damaged  in  a  certain 
sum,  plaintiff  cannot  recover  for  the  rental  value  of  the  use  of  butcher's  tools 
contained  in  his  baggage,  without  setting  forth  such  claim  by  amendment  to 
his  petition.  Choctaw,  O.  &  G.  R.  Co.  v.  Zwirtz,  73  P.  941,  13  Okl.  411. 
Where,  in  an  action  against  a  carrier  for  delay  in  forwarding  plaintiff's  bag- 
gage, the  petition  alleges  that  by  negligence  of  the  company  plaintiff  was  de- 
layed in  carrying  on  his  business,  whereby  he  was  damaged  in  a  certain  sum, 
plaintiff  cannot  recover  for  the  rental  value  of  the  use  of  butcher's  tools  con- 
tained in  his  baggage,  without  setting  forth  such  claim  by  amendment  to  his 
petition.  Id. 
Where  a  petition  contained  several  separately  stated  causes  of  action  each 

for  damages  "in  the  sum  of  $ ,"  and  a  concluding  paragraph  charged 

damages  in  a  stated  sum,  the  petition  was  not  demurrable  for  failure  to  state 
the  damages  in.  each  paragraph.  Patterson  v.  Morgan,  53  Okl.  95,  155  P.  694. 
In  an  action  to  recover  damages  for  personal  injuries,  the  petition  must 
show  that  the  injuries  were  the  natural  and  probable  consequences  of  the 
negligent  act  of  defendant,  and  that  it  should  have  foreseen  such  an  injury ; 
and  a  petition  which  fails  to  show  such  facts  does  not  state  a  cause  of  action. 
Mayne  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  69  P.  933,  12  Okl.  10. 

64  Where,  in  an  action  for  personal  injuries  sustained  by  a  passenger,  the 
carrier  desires  to  avail  itself  of  its  rules  and  regulations  relating  to  passen- 
gers and  a  violation  thereof  by  the  passenger,  the  same  must  be  pleaded. 
Lane  v.  Choctaw,  O.  &  G.  R.  Co.,  91  P.  883,  19  Okl.  324. 

65  In  an  action  on  a  contract  for  loss  and  injury  to  live  stock  during  trans- 
portation a  petition  which  fails  to  allege  compliance  with  the  conditions  of 
the  contract  requiring  notice  of  the  claim  for  damages  within  a  certain  time, 
or  a  waiver  thereof  is  insufficient  to  state  a  cause  of  action.    Midland  Valley 
R.  Co.  v.  Ezell,  116  P.  163,  29  Okl.  40. 

66  Essential  averments  of  petition  to  recover  for  breach  of  contract  of  em- 
ployment are  allegation  of  contract,  breach,  performance,  or  readiness  to  per- 
form on  part  of  plaintiff,  and  damages.     Sharpless  Separator  Co.  v.  Gray,  62 
Okl.  73,  161  P.  1074.    Where  petition  for  damages  for  breach  of  employment 
contract  contains  necessary  allegations  to  state  cause  of  action  for  breach, 
fact  that  damages  were  denominated  salary  instead  of  damages  does  not  ren- 
der it  fatally  defective.    Id. 

In  an  action  for  breach  of  a  written  contract  to  convey  land  wh«?rein  plain- 
tiff agreed  to  buy  subject  to  an  option  given  R.  and  W.  expiring  at  a  certain 
date,  it  must  be  alleged  that  defendant  failed  to  sell  and  convey  after  R.  and 
W.  failed  to  exercise  their  option.  Hart  v.  King,  123  P.  1062,  31  Okl.  761. 

°7  A  petition,  to  state  a  cause  of  action  for  malicious  prosecution,  must 
charge  that  the  prosecution  was  commenced  against  plaintiff,  that  it  was  in- 
stituted or  instigated  by  defendant,  that  it  was  malicious,  that  it  has  been 
legally  terminated  in  plaintiff's  favor,  and  that  it  was  without  probable 
cause.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Holliday,  30  Okl.  680,  120  P..  927,  39  L. 
R.  A.  (N.  S.)  205. 

While  special  damages  should  be  averred  in  the  petition  in  order  to  notify 

HON.PL.&  PRAC.— 28  (433) 


§    578  PLEADINGS  (Ol.  11 

ployers*  Liability  Act  (U.  S.  Comp.  St.  §§  8657-8665), 88  death,69 
trespass,70  equity,71  offer  to  do  equity,72  divorce,73  injunction,74 

the  defendant  of  the  nature  of  the  plaintiff's  claims,  and  to  prevent  surprise 
at  the  trial,  it  is  not  necessary,  in  an  action  for  malicious  prosecution,  where 
the  demand  sounds  wholly  in  damages,  and  there  is  but  a  single  cause  of 
action,  to  state  specifically  and  in  separate  amounts  the  different  items  which 
go  to  make  up  the  total  sum  of  damages,  as  it  is  enough  to  claim  so  much  in 
gross  for  the  wrong  done.  Ten  Cate  v.  Fansler,  65  P.  375,  10  Okl.  7.  A  com- 
plaint for  damages  for  malicious  prosecution,  averring  that  by  such  prosecu- 
tion and  arrest  by  defendant  plaintiff  was  deprived  of  his  liberty,  oppressed, 
degraded,  and  brought  into  disrepute  among  his  neighbors ;  that  his  good 
name  and  business  standing  had  been  injured ;  and  that  he  had  been  kept 
from  pursuing  his  business  and  had  sustained  damages  in  a  certain  sum, — 
is  sufficiently  particular  as  to  the  special  allegations  to  justify  a  recovery  of 
damages.  Id.  A  complaint  for  damages  for  malicious  prosecution,  averring 
that  by  such  prosecution  and  arrest  plaintiff  was  deprived  of  his  liberty, 
brought  into  disrepute  among  his  neighbors,  his  good  name  and  business 
standing  impaired,  and  he  had  been  kept  from  pursuing  his  business,  ade- 
quately states  the  acts  constituting  the  fraud,  malice,  etc.,  on  which  a  claim 
for  punitive. damages  can  be  sustained.  Id. 

es  Where  the  facts  bring  the  case  within  the  federal  Employers'  Liability 
Act  (U.  S.  Comp.  St.  §§  8657-8665),  the  provisions  of  that  act  need  not  be 
expressly  referred  to  in  the  pleadings.  St.  Louis  &  S.  F.  R.  Oo.  v.  Snowden-, 
48  Okl.  115,  149  P.  1083. 

6»  Petition  in  a  widow's  action  against  a  sheriff  and  his  bondsmen  for 
death  of  her  husband,  who  was  killed  by  a  deputy  sheriff,  held  not  demurrable 
as  failing  to  show  that  the  deputy  was  acting  under  color  of  office.  Meek  v. 
Tilghman,  55  Okl.  208,  154  P.  1190. 

™  One  may  maintain  trespass  for  injury  to  his  possession,  only  when  he  is 
in  the  actual  possession  and  so  alleges,  or  where  he  is  the  owner  of  the  fee, 
and  further  shows  by  his  petition  that  the  land  is  unoccupied,  and  the  plain- 
tiff has  the  constructive  possession  thereof.  Casey  v.  Mason,  59  P.  252,  8 
Okl.  665. 

71  Where  plaintiff  files  a  bill  to  set  aside  a  decision  of  the  Land  Office  on 
the  ground  that  it  was  procured  by  fraud,  but  fails  to  plead  such  a  state  of 
facts  as  will  enable  a  court  of  equity  to  grant  relief,  a  demurrer  will  be  sus- 
tained, though  the  bill  may  show  a  wrong  has  been  done  for  which  plaintiff 
has  no  adequate  remedy  at  law,  where  it  fails  to  show  that  equity  can,  if  the 
allegations  are  established,  correct  the  fraud.    Estes  v.  Timmons,  73  P.  303, 
12  Okl.  537,  judgment  affirmed  26  S.  Ct  85,  199  U.  S.  391,  50  L.  Ed.  241. 

72  in  action  by  full-blood  Choctaw  to  recover  possession  of  his  surplus  al- 
lotment attempted  to  be  conveyed  by  him  under  agreement  made  void  by  Act 

73  in  an  ordinary  action  for  divorce  and  alimony  on  the  ground  of  abandon- 
ment,  in  order  to  entitle  the  court,  as  a  court  of  equity,  to  make  an   allow- 
ance for  the  wife's  support,  there  must  be  specific  allegations  of  the  facts  re- 
lied   on  as  grounds  for  such  relief,  independent  of  the  statute.     Birdzell    v. 
Birdzell,  11  P.  907,  35  Kan.  638,  denying  rehearing  6  P.  561,  33  Kan.  433,  52 
Am.  Rep.  539. 

74  See  note  74  on  following  page. 

(434) 


Art.  4)  ,  PETITION  §  578 

enjoining  collection  of  taxes,78  trusts,76  specific  performance,77  re- 
Cong.  April  26,  1906,  §  19,  the  petition  need  not  allege  a  tender  or  offer  to  re- 
turn the  consideration.  Folsom  v.  Jones  (Okl.)  173  P.  649. 

Petition  to  recover  price  of  realty  conveyed  to  plaintiff  because  of  failure 
of  title,  which  fails  to  allege  offer  to  reconvey,  is  demurrable.  Carson  v. 
Walker,  57  Okl.  182,  156  P.  1172. 

Where  purchaser,  suing  for  specific  performance,  pleads  tender  of  consid- 
eration and  his  ability  and  willingness  to  perform,  the  petition  is  not  defec- 
tive on  account  of  a  defective  plea  of  proffer  of  consideration  in  court.  Skid- 
more  v.  Leavitt  (Okl.)  175  P.  503. 

7  *  A  petition  setting  out  no  portion  of  a  proposed  life  insurance  policy  ex- 
cept a  "war  rider,"  alleging  that  the  Insurance  Commissioner  with  whom  a 
form  of  such  policy  had  been  filed  will,  if  not  enjoined,  wrongfully  disapprove 
such  policy  because  of  a  provision  as  to  the  rights  of  insured  if  he  dies  while 
engaged  in  the  military  service,  "or  within  six  months  thereafter,"  is  insuffi- 
cient to  show,  as  against  a  general  demurrer,  that  such  commissioner  will  act 
arbitrarily  or  fraudulently  in  so  doing.  Mutual  Benefit  Life  Ins.  Co.  of  New- 
ark, N.  J.,  v.  Welch  (Okl.)  175  P.  45.  A  petition  to  enjoin  the  Insurance  Com- 
missioner from  disapproving  a  form  of  life  insurance  with  a  "war  rider"  attach- 
ed, to  withstand  a  demurrer  should  affirmatively  show  that  a  threatened  disap- 
proval by  such  commissioner  will  be  arbitrary  and  fraudulent,  by  a  full  dis- 
closure of  all  the  facts  affecting  the  question.  Id. 

A  petition  which  has  for  its  purpose  the  obtaining  of  an  injunction  to  restrain 
persons  from  interfering  with  stock  running  at  large  in  the  free  range  por- 
tions of  the  territory,  which  fails  to  aver  that  all  the  public  school,  college, 
public  building  and  indemnity  lands  are  leased  by  the  school  land  board  in 
the  congressional  township  where  it  is  sought  to  have  such  injunction  operate, 
is  fatally  defective,  and  it  is  not  error  to  sustain  a  demurrer  to  such  petition, 
as  stock  is  only  permitted  to  run  at  large  in  the  free  range  portion  of  the  ter- 
ritory id  those  congressional  townships  and  at  such  periods  as  all  and  the 
whole  of  the  public  school,  college,  public  building,  and  indemnity  lands  of 
such  township  are  held  under  lease  as  provided  by  law.  Addington  v.  Canfield, 
66  P.  355,  11  Okl.  204. 

75  A  petition  to  enjoin  the  collection  of  taxes  pursuant  to  a  raise  by  the 
board  of  equalization,  where  the  only  ground  for  equitable  relief  is  that  the 
property  is  assessed  beyond  its  fair  cash  value,  and  which  fact  is  not  alleged, 
is  subject  to  demurrer.  Caldwell  v.  Board  of  Com'rs  of  Noble  County,  125  P. 
467,  34  Okl.  265. 

Where  petition  for  injunction  shows  that  complaining  party  has  failed  to 
bring  himself  within  Rev.  Laws  1910,  §  7354,  by  showing  that  his  property  has 
been  assessed  more  than  once  in  the  same  year,  or  has  been  assessed  for  taxes 
to  which  it  was  not  subject,  the  petition  is  bad  on  demurrer.  Higgins,  Ne- 
ville &  Boddy  v.  Wood,  143  P.  662,  43  Okl.  554. 

7  «  A  petition  to  declare  a  resulting  trust  in  lands  in  the  Cherokee  Nation 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action,  where  it  does 
not  show  that  an  allotment  certificate  has  been  issued  to  the  land.  Thomp- 
son v.  Hill,  48  Okl.  304,  150  P.  203. 

77  In  an  action  by  a  vendor  to  enforce  the  specific  performance  of  a  con- 
tract for  the  sale  of  lands,  where  fraud,  misconduct,  or  mistake  is  relied  on 

(435) 


§  578  PLEADING^  (Ch.  11 

scission  and  cancellation,78  reformation  of  instruments,79  altera- 
tion of  instruments,80  foreclosure,81  contest  of  allotment,82  capaci- 

as  the  ground  for  setting  aside  an  appraisal  of  the  lands  duly  made  by  ap- 
praisers selected  in  accordance  with  the  agreement  of  the  parties,  it  must  be 
pleaded.  Guild  v.  Atchison,  T.  &  S.  F.  R.  Co.,  45  P.  82,  57  Kan.  70,  57  Am.  St. 
Rep.  312,  33  L.  R.  A.  77. 

78  in  an  action  to  cancel  a  deed,  it  is  unnecessary  to  allege  the  want  of  an 
adequate  remedy  at  law,  but  the  facts  should  be  pleaded  from  which  that  con- 
clusion can  be  drawn.  Mosier  v.  Walter,  87  P.  877,  17  Okl.  305.  In  an  ac- 
tion to  cancel  a  deed,  where  the  acts  of  defendant  pleaded  are  such  as  to  create 
a  reasonable  belief  that  he  had  abandoned  the  contract  involved,  the  vendor 
may  rescind  and  bring  an  action  to  cancel  the  deed  without  pleading  notice  of 
disaffirmance  in  his  petition.  Id. 

A  petition  for  the  rescission  of  a  contract  for  the  exchange  of  real  estate 
need  not  Jallege  a  tender  of  the  property  received  in  the  exchange,  it  being 
sufficient  to  offer  to  return  the  same,  under  St.  1890,  §  894.  Day  v.  Mooney, 
41  P.  142,  3  Okl.  608. 

In  an  action  for  rescission  of  a  contract  and  for  damages,  it  is  not  neces- 
sary to  aver  a  return  or  offer  to  return  a  machine  which  the  defendant  had 
agreed  to  furnish  and  install,  but  which  had  not  been  accepted  by  plaintiffs, 
and  was  not  in  their  possession  when  the  action  was  commenced.  King  Bros, 
v.  Perfection  Block  Mach.  Co.,  106  P.  1071,  81  Kan.  809. 

The  petition  in  an  action  to  rescind  a  contract  for  fraud  must  charge  that 
a  material  misrepresentation  known  by  defendant  to  be  false  was  made  by 
him  with  intent  to  induce  plaintiff  to  contract,  and  that  plaintiff  relied  upon 
and  was  deceived  and  damaged  by  such  misrepresentations.  Sipes  v.  Dickin- 
son, 136  P.  761,  39  Okl.  740.  A  petition  in  an  action  to  cancel  a  conveyance 
for  fraud  in  its  procurement  held  sufficient.  Id. 

Pleading  and  proof  that  the  lands  conveyed  were  a  homestead  within  Wil- 
liams' Const,  art.  12,  §§  1,  2,  and  the  statute,  held  essential  to  a  successful  at- 
tack on  a  wife's  deed  in  which  her  husband  did  not  join.  Norton  v.  Kelley. 
57  Okl.  222,  156  P.  1164. 

7»  In  an  action  for  reformation  and  specific  performance  of  a  written  con- 
tract, and  for  compensation  for  improvements  made  under  a  subsequent  parol 
agreement,  plaintiff,  in  order  to  recover  on  the  parol  agreement,  must  allege 
the  terms  thereof  in  such  language  as  to  enable  the  court  to  form  some  con- 
clusions as  to  what  the  agreement  was.  Mehlin  v.  Superior  Oil  &  Gas  Co., 
136  P.  581,  39  Okl.  565. 

so  Ratification  by  maker  of  instrument  materially  altered,  to  be  available, 
must  be  pleaded.  Wayne  County  Nat.  Bank  v.  Kneeland,  61  Okl.  265,  161  P. 
193. 

si  Petition  in  action  to  foreclose  mechanic's  lien,  that  does  not  contain  an 
allegation  that  the  material  furnished  was  actually  used  in  the  construction 
of  the  building,  is  defective.  Ryndak  v.  Seawell,  76  P.  170,  13  Okl.  737. 

Where  it  did  not  appear  that  a  mortgage  contained  a  provision  accelerating 
an  unmatured  indebtedness  or  authorizing  plaintiff  to  foreclose  on  default  in 
payment  of  any  one  of  the  notes  or  interest,  .held,  that  no  cause  of  action 
was  stated.  Griffin  v.  Jones,  45  Okl.  305,  147  P.  1024. 

The  petition  in  foreclosure  need  not  specify  with  particularity  the  charac- 

82  See  note  82  on  following  page. 

(436) 


Art.  4)  PETITION  §  578 

ty  in  which  plaintiff  sues,88  act  of  bankruptcy,84  and  condemnation 
proceedings.85 

Foreign  laws  relied  on  in  an  action  on  contract  must  be  plead- 
ed,86 but  it  is  not  necessary  to  plead  the  statutes  in  force  in  the  In- 
dian Territory.87 

ter  of  title  held  by  an  adverse  party  in  the  mortgaged  premises.  Davis  v.  Mof- 
fett,  144  P.  607,  43  Okl.  771. 

The  plaintiff  in  foreclosure  need  not  set  forth  with  particularity  the  char- 
acter of  an  adverse  party's  title  in  the  mortgaged  premises.  Ashcraft  v.  Mof- 
fett,  44  Okl.  386,  144  P.  1041. 

Where  a  petition  to  enforce  a  landlord's  lien  against  a  tenant's  crops  under 
Rev.  Laws  1910,  §§  3809,  3810,  fails  to  allege  any  contract  with  the  tenant,  or 
to  show  anything  due,  or  that  the  tenant  was  obligated  to  pay  the  portion  of 
the  crop  claimed,  it  does  not  state  facts  sufficient  to  constitute  such  a  lien. 
Lee  v.  Lowery,  140  P.  1175,  42  Okl.  148. 

sa  Petition  attacking  decision  of  Secretary  of  Interior  in  deciding  contest 
of  an  allotment,  and  in  awarding  a  patent,  not  showing  that  he  made  "a  gross 
mistake  of  facts,"  or  a  material  error  of  law,  or  that  fraud  was  practiced  on 
him  by  successful  party,  failed  to  state  a  cause  of  action.  Hill  v.  Burnett 
(Okl.)  169  P.  1120.  Petition  attacking  decision  of  Secretary  of  Interior  in  con- 
test of  allotment,  and  in  awarding  a  patent,  held  not  to  state  facts  sufficient  to 
constitute  a  cause  of  action  against  defendant  to  whom  patent  issued.  Id. 

Where  sales  contract  gave  buyer  right  to  return  certain  goods  at  cost  with- 
in 30  days  after  cancellation,  petition  to  recover  for  such  parts  should  allege 
their  return,  and,  failing  to  do  so,  was  subject  to  demurrer.  Ford  Motorcar 
Co.  v.  Rackley  (Okl.)  166  P.  427. 

ss  On  an  averment  in  a  petition  that  plaintiff  is  the  duly  qualified  and  act- 
ing assignee  of  a  bank  in  the  state  of  Missouri  not  denied  by  the  answer,  it 
will  be  presumed  that  the  necessary  steps  have  been  taken  under  the  laws  of 
Kansas  to  authorize  him  to  sue  in  that  state  as  assignee.  Rogers  v.  Coates, 
16  P.  463,  38  Kan.  232. 

84  Under  Bankr.  Act  July  1,  1898,  §§  60a,  60b,  as  amended  by  Act  Feb.  5, 
1903,  §  13  (U.  S.  Comp.  St.  §  9644),  petition  failing  to  charge  that  creditor  had 
reasonable  cause  to  believe  that  preference  was  intended  held  insufficient  to 
state  a  cause  of  action.    Rodolf  v.  First  Nat.  Bank,  121  P.  629,  30  Okl.  631,  41 
L.  R,  A.  (N.  S.)  204. 

85  Petition  to  condemn  a  right  of  way  for  a  road  held  sufficient,  though  it 
did  not  allege  J:hat  the  petition  filed  with  the  board  pursuant  to  Rev.  Laws 
1910,  §  7553,  was  signed  by  a  majority  of  the  voters  of  the  township.    Board 
of  Com'rs  of  Harper  County  v.  Day,  46  Okl.  83,  147  P.  1045. 

so  Marx  v.  Hefner,  46  Okl.  453,  149  P.  207,  Ann.  Cas.  1917B,  656. 

87  The  laws  of  Arkansas,  which  were  extended  over  the  Indian  Territory, 
being  in  force  in  Oklahoma  under  Const.  Schedule,  §  1,  as  to  rights  under  In- 
dian Territory  contracts,  need  not  be  pleaded.  Marx  v.  Hefner,  46  Okl.  453, 
149  P.  207,  Ann.  Cas.  1917B,  656. 

Under  Const.  Schedule,  §  1,  held  unnecessary  to  plead  and  prove  the  stat- 
ute of  Arkansas  relating  to  contract  executed  before  statehood ;  the  court  tak- 

(437) 


§    578  PLEADINGS  (Ol.  11 

A  complaint  for  negligence  must  show  injury  to  plaintiff  from 
violation  of  duty  by  defendant.88 

It  is  not  necessary  for  a  plaintiff  corporation  to  allege  in  its  pe- 
tition that  it  is  a  corporation.89  Hence,  where  a  company  doing  ' 
business  under  a  corporate  name  contracts  for  the  sale  of  nursery 
stock,  and  assigns  the  contract  to  a  third  person,  who  sues  to  re- 
cover the  amount  due  thereon,  the  petition  is  not  fatally  defective, 
as  against  an  objection  to  evidence,  because  it  fails  to  describe 
the  assignor  by  stating  whether  it  was  a  corporation,  a  partnership, 
an  unincorporated  association,  or  an  individual  transacting  busi- 
ness under  a  corporate  name.90 

A  foreign  corporation  need  not  allege  in  its  petition  compliance 
with  the  laws  as  to  doing  business  in  the  state.91 

It  is  not  necessary  to  a  sufficiency  of  a  cause  of  action  on  a  con- 
tract to  set  out  the  fact  that  the  instrument  was  stamped.92 

The  petition  in  a  suit  to  cancel  a  deed  for  fraud  need  not  allege 
an  offer  to  do  equity.93 

The  plaintiff  in  an  action  to  recover  real  estate  need  not  deraign 
his  title  with  particularity.94 

ing  judicial  notice  of  the  same.  Barnes  v.  American  Soda  Fountain  Co.,  121 
P.  250,  32  Okl.  81. 

In  an  action  brought  since  statehood  on  an  infant's  contract  made  in  the 
Indian  Territory  prior  t;o  statehood,  it  was  unnecessary  for  plaintiff  to  plead 
and  prove  the  statutes  of  Arkansas,  since  Const.  Schedule,  §  1,  requires  that 
judicial  notice  be  taken  of  same.  Carroll  v.  Durant  Nat.  Bank,  38  Okl.  267, 
133  P.  179. 

ss  Lisle  v.  Anderson,  61  Okl.  68,  159  P.  278,  L.  R.  A.  1917A,  128. 

sojantzen  v.  Emanuel  German  Baptist  Church,  112  P.  1127,  27  Okl.  473, 
Ann.  Cas.  1912C,  659. 

»o  Strong  v.  Moore,  89  P.  895,  75  Kan.  437. 

9i  White  Sewing  Mach.  Co.  v.  Peterson,  100  P.  513,  23  Okl.  361. 

A  complaint  by  a  foreign  corporation  is  not  demurrable  because  it  fails  to 
allege  compliance  with  Laws  1890,  c.  18,  art.  20,  prescribing  conditions  on 
which  foreign  corporations  may  do  business  in  the  state.  Keokuk  Falls  Imp. 
Co.  v.  Kingsland  &  Douglas  Manuf'g  Co.,  47  P.  484,  5  Okl.  32. 

92Baumhoff  v.  Oklahoma  City  Electric  &  Gas  &  Power  Co.,  77  P.  40,  14 
Okl.  127. 

93  Washington  v.  Colvin,  55  Okl.  774,  155  P.  251;  Harris-Lipsitz  Co.  v.  Old- 
ham,  56  Okl.  124,  155  P.  865. 

»•*  Shellenbarger  v.  Fewel,  124  P.  617,  34  Okl.  79. 

(438) 


Art.  4)  PETITION  §  579 

§  579.     Forms — Petitions 

SUIT   TO    CANCEL  CONVEYANCES 

(Caption.) 

Come  now  the  plaintiffs  and  complain  of  the  defendants  and 
each  of  them,  and  for  cause  of  action  state  and  allege : 

That  the  plaintiffs,  A.  M.  and  B.  M.,  are  husband  and  wife, 
and  were  at  all  the  times  hereinafter  mentioned,  and  now  reside  in 
—  county,  Oklahoma.  • 

That  the  said  plaintiff  A.  M.  is  a  member  of  the  Creek  Nation  of 
Indians,  and  as  such  member  of  said  Nation  of  Indians  there  was 
allotted  to  him  the  following  described  land :  Lots  3  and  4  in  sec- 
tion 7  and  the  east  half  of  the  southwest  quarter  of  section  7,  other- 
wise described  as  the  southwest  quarter  of  section  7,  township  18, 
and  range  7  east,  in  Creek  county,  Oklahoma. 

That  the  said  defendants,  J.  D.,  F.  S.,  R.  H.,  and  F.  E.  are  res- 
idents of county,  Oklahoma. 

That  said  allotment  became  very  valuable,  which  fact  was  known 
to  the  defendant  J.  D.,  but  which  was  not  known  to  the  plain- 
tiffs. 

That  the  said  plaintiff  A.  M.  was  at  all  times  hereinafter  men- 
tioned and  had  been  for  many  years  prior  thereto  a  confirmed 
drunkard. 

That  the  said  above-named  allotment  had  become  very  valuable, 
but  through  the  long  use  of  intoxicating  liquors  the  mind  of  the  said 
plaintiff  A.  M.  had  become  so  weakened  that  he  did  not  realize  that 
said  allotment  had  become  valuable,  and  did  not  appreciate  the 
value  of  money  or  the  value  of  property;  that  the  said  plaintiff  A. 
M.  had  gotten  to  that  stage  where  he  would  do  anything,  or  sign 
any  paper  or  anything,  for  any  one  in  whom  he  had  confidence  or 
to  get  money  or  whisky;  that  he  did  not  have  sufficient  mind  to 
know  or  appreciate  the  value  of  said  land. 

That  said  above  described  land  was  at  all  the  times  hereinafter 
mentioned  of  the  actual  value  of  not  less  than  $500,000. 

That  the  said  defendant  J.  D.  had  throughly  investigated  said 
above  described  land  and  knew  its  value,  and  knew  what  it  was 
worth,  and,  knowing  the  weakness  of  said  A.  M.,  had  gained  his 
confidence;  that  after  learning  the  value  of  said  land  the  said  de- 
fendant J.  D.  did,  on  or  about  July  2,  1914,  through  drink  and  in- 

(439) 


§   579  PLEADINGS  (Cll.  11 

toxicating  liquors,  secure  a  six  months'  option  to  buy  an  un- 
divided one-half  interest  in  said  above  described  land  at  a  price 
of  $30,000,  a  copy  of  which  said  option  contract  is  hereto  attached 
as  Exhibit  A  and  made  a  part  hereof,  the  same  as  if  copied  herein 
in  full ;  that  after  the  said  J.  D.  had  procured  said  option  to  buy 
a  well  of  large  capacity  was  brought  in  on  or  near  said  above  land. 

That  for  the  purpose  of  securing  the  land  for  nothing  the  said 
J.  D.  entered  into  an  agreement  with  said  defendant  F.  S.,  the 
family  physician  of  plaintiffs,  to  procure  from  plaintiffs  an  undi- 
vided one-fourth  interest  in  said  above  described  land  without  any 
consideration  whatever,  and  in  order  to  carry  out  said  design  did 
procure  the  signature  of  plaintiffs  to  a  deed  and  a  contract  on  an 
undivided  one-fourth  of  the  above  described  land,  and  which 
said  instruments  were  signed  by  plaintiff  A.  M.  while  in  an  intox- 
icated condition  and  at  a  time  when  his  mind  and  mtellect  was  so 
weakened  by  me  use  of  intoxicating  liquor  that  he  did  not  know 
what  he  was  doing  or  what  he  was  about.  A  copy  of  said  deed  and 
said  contract,  dated  November  7,  1914,  are  hereto  attached  as  Ex- 
hibits B  and  C  and  made  a  part  hereof  the  same  as  if  copied  herein 
in  full.  That  the  said  A.  M.  was  induced  to  sign  said  papers  by  the 
said  defendant  F.  S.,  in  whom  he  had  confidence  at  the  time,  and 
under  whose  influence  and  treatment  he  then  was  and  had  been 
for  a  long  time,  and  who  pursuant  to  the  conspiracy  aforesaid 
and  as  a  part  of  the  same  transaction,  secured  for  himself,  F. 
S.,  at  the  same  time  without  consideration  a  deed  and  contract  to 
an  undivided  one-fourth  interest  in  said  above  described  land, 
worth  at  least  $125,000.  A  copy  of  said  deed  and  said  contract  of 
November  10,  1914,  are  hereto  attached  as  Exhibits  D  and  E  and 
made  a  part  hereof,  the  same  as  if  copied  herein  in  full.  That  dur- 
ing all  the  time  the  negotiations  were  carried  on  the  plaintiff  A. 
M.  had  no  understanding,  all  of  which  was  known  to  the  said  J.  D 
and  his  agent,  ,F.  S.,  and  the  plaintiff  B.  M.,  during  all  of  said  time 
was  in  fear  of  her  life  at  the  hands  of  plaintiff  A.  M.  and  thus  signed 
all  of  said  above  named  instruments. 

That  plaintiff  A.  M.,  after  making  of  said  instrument  aforesaid, 
was  inadvertently  sent  to  a  hospital  for  inebriates  by  F.  S.,  the 
agent  of  J.  D.,  and  remained  in  said  hospital  and  other  hospitals  for 
a  long  time,  and  was  never  fully  recovered  from  his  enfeebled  con- 
dition of  his  mind  as  a  result  of  the  use  of  intoxicating  liquors,  and 

(440) 


Art.  4)  PETITION  §  579 

has  recently  discovered  the  facts  in  this  case,  and  the  fraudulent 
conduct  of  J.  D.  and  his  said  agents,  F.  S.  and  P.  S.,  in  the  procuring 
of  the  various  contracts  from  plaintiffs  aforesaid.  That  the  said 
J.  D.  procured  said  contracts  and  said  deed  from  plaintiffs  with- 
out any  consideration  whatsoever,  other  than  the  $100  paid  plaintiff 
at  the  time  of  securing  the  option  of  July  2,  1914,  all  of  which  has 
been  repaid  the  said  J.  D.  That  said  defendants  have  possession  of 
and  exercise  control  over  the  said  property  described  in  the  peti- 
tion. 

That  the  said  J.  D.  has  drawn  all  the  royalty  from  said  land  de- 
scribed in  said  contract  of  November  7,  1914,  and  said  contract  of 
July  2,  1914,  and  of  which  royalty  he  has  retaine'd  $7,500;  that  the 
said  J.  D.  is  now  drawing  the  royalty  from  said  property,  all  of 
which  in  equity  and  good  conscience  belongs  to  this  plaintiff.  That 
in  order  to  preserve  the  fund  and  prevent  it  from  being  dissipated 
it  will  be  necessary  to  appoint  a  receiver  for  this  property,  to  take 
charge  of  same,  and  manage,  conduct,  and  hold  same  until  the  trial 
of  this  said  cause.  That  large  quantities  of  oil  are  now  being  run 
and  paid  to  said  J.  D.,  and  unless  a  receiver  be  appointed  said  roy- 
alties will  in  the  future,  as  in  the  past,  be  paid  to  the  said  J.  D., 
and  thus  lost  to  this  plaintiff. 

That  said  instruments  aforesaid  have  been  placed  of  record  in  the 
office  of  the  register  of  deeds,  county  clerk's  office  of  Creek  county, 
Oklahoma,  and  by  reason  of  the  inequitable  conduct  of  the  said 
J.  D.  and  his  said  agents,  F.  S.  and  P.  S.,  and  because  of  the  entire 
want  of  consideration,  and  because  of  the  mental  condition  of  said 
A.  M.  at  the  time  said  instruments  were  signed,  the  said  deeds  and 
contracts  held  by  the  defendants  J.  D.,  R.  H.,  and  F.  E.  should  be 
set  aside  and  held  for  naught,  and  an  accounting  should  be  had 
between  the  parties,  plaintiffs  and  defendants,  of  the  proceeds  re- 
ceived from  said  land. 

That  the  said  defendants  R.  H.  and  F.  E.  were  particeps  crim- 
inis  with  J.  D.  in  putting  over  said  fraudulent  transaction,  and 
fraudulently  assisted  the  defendant  J.  D.  in  securing  said  deed  and 
said  contracts  aforesaid.  That  the  said  defendants  R.  H.  and  F.  E., 
and  each  of  them,  knew  all  the  facts  and  circumstances  above  set 
forth,  and  knew  or  had  reason  to  know,  or  with  due  diligence 
could  have  known,  that  said  plaintiff  A.  M.  signed  said  deeds  and 

(441) 


§  579  PLEADINGS  (Cll.  11 

said  contracts  at  a  time  when  he  was  in  an  intoxicated  condition, 
and  at  a  time  when  his  mind  was  so  weakened  by  the  use  of  in- 
toxicating liquor  that  he,  A.  M.,  did  not  know  what  he  was  doing" 
or  what  he  was  about,  or  the  value  of  money  or  the  value  of  his 
property.  That  the  said  defendants  R.  H.  and  F.  E.,  and  each 
of  them,  knew  or  had  reasons  to  know,  or  with  due  diligence  could 
have  known,  that  the  said  defendant  J.  D.  paid,  and  that  the  plain- 
tiffs, A.  M.  and  B.  M.,  received,  no  consideration  for  said  convey- 
ance, or  for  said  deeds  or  said  contracts,  or  for  said  property ;  and 
plaintiffs  further  state,  as  a  part  of  said  conspiracy  between  the  said 
defendants,  and  in  pursuance  of  said  conspiracy,  and  at  the  same 
time  or  soon  thereafter,  and  on  or  about  the  15th  day  of  December, 
1914,  the  defendant  J.  D.  executed  a  conveyance  to  the  defendants 
R.  H.  and  F.  K.  on  a  part  of  said  land,  and  that  the  said  J.  D.  has 
without  consideration  and  fraudulently  conveyed  to  said  defendants 
R.  H.  and  F.  E.  one-sixteenth  interest  in  the  above  described  land. 
That  neither  the  said  defendant  R.  H.  nor  the  said  defendant  F.  E. 
paid  any  consideration  for  said  conveyance  or  said  one-sixteenth. 
A  copy  of  said  instrument  is  hereto  attached  as  Exhibit  F,  and 
made  a  part  hereof,  the  same  as  if  copied  herein  in  full. 

That  defendant  F.  S.  claims  some  right,  title,  interest,  or  estate 
under  or  by  virtue  of  the  said  J.  D.'s  deed,  a  copy  of  which  is  hereto- 
attached,  but  same  is  null  and  void;  that  defendant  F.  S.  should 
be  required  to  set  forth  what  right,  title,  interest,  or  estate,  if  any, 
he  claims  under  or  by  virtue  of  the  said  J.  D.'s  deed  aforesaid,  and 
that  same  should  be  decreed  null  and  void. 

Wherefore  plaintiffs  pray  that  the  said  contract,  dated  July 
2,  1914,  and  attached  as  Exhibit  A,  and  the  deed  and  contract  ex- 
ecuted by  plaintiffs  to  said  defendant  J.  D.,  and  which  said  con- 
tract bears  date  of  November  7,  1914,  and  that  the  deed  dated  De- 
cember 15,  1914,  by  J.  D.  to  R.  H.  and  F.  E.  be  canceled,  set  aside, 
and  held  for  naught,  and  that  the  said  defendants  and  each  of  them 
be  required  to  state  and  set  forth  what  interest,  if  any,  they  have  or 
claim  to  said  land,  and  that  the  same  be  ordered  delivered  up,  can- 
celed, and  held  for  naught.  Plaintiffs  further  pray  for  an  ac- 
counting between  the  parties,  and  for  the  appointment  of  a  receiver,, 
and  for  such  other  and  further  relief  as  this  court  may  in  equity 
and  good  conscience  deem  plaintiffs  entitled  to,  and  that  plaintiffs 
(442) 


Art.  4)  PETITION  §  579 

be  given  possession  of  and  control  over  the  said  property  described 
in  the  petition. 

A.  M., 

B.  M., 

Plaintiffs. 

,  Attorneys  for  Plaintiffs. 

(Attach  as  exhibits,  copies  of  deeds,  conveyances,  etc.,  sought  to 
be  canceled.) 

t 

PETITION  TO  ESTABLISH  RESULTING  TRUST 

(Caption.) 

Comes  now  the  plaintiff,  A.  B.,  and  for  his  cause  of  action  against 
the  defendant,  C.  D.,  alleges  and  states: 

1.  That  on  or  about  the day  of  —    — ,  19 — ,  plaintiff  was 

desirous  of  purchasing,  and  had  been  and  was  negotiating  for  the 
purchase  of,  certain  real  estate  in  -  county,  Oklahoma,  de- 
scribed as  follows:    Lot  1,  etc.;    that  said  tract  of  land  was  then 
owned  by  one  G.  H. 

2.  That  on  or  about  said  date,  the  defendant,  being  well  aware  of 
the  fact  that  plaintiff  was  desirous  of  purchasing  said  land  and 
that  he  was  negotiating  for  the  purchase  of  the  same,  came  to  this 
plaintiff  and  represented  to  him  that  he,  the  defendant,  was  also 
desirous  of  purchasing  said  tract. 

3.  That  defendant  further  falsely  and  fraudulently  represented 
to  this  plaintiff  that  he,  the  defendant  in  addition  to  the  aboVe 
described  tract  of  land,  also  desired  to  purchase  another  tract  of 
land  which  .adjoined  the  same,  and  described  as  follows:    Lot  2, 
etc. ;    and  that  defendant  further  falsely  and  fraudulently  repre- 
sented to  this  plaintiff  that  said  tract  of  land  was  also  then  owned 
by  the  said  G.  H. ;  that  defendant  further  falsely  and  fraudulently 
represented  to  plaintiff  that  of  the  two  above  described  tracts  he 
was  particularly  desirous  of  purchasing  the  last  named,  being  said 
lot  2,  etc. 

4.  That  defendant  further  falsely  and  fraudulently  represented 
to  this  plaintiff  that,  if  plaintiff  would  refrain  from  making  any 
further  attempts  to  purchase  the  said  lot  1,  etc.,  the  defendant 
would   carry  on   negotiations   with  the   said   G.  H.,  and  that  he 
would  purchase  said  lot  2,  etc.,  for  himself,  and  that  he  would  pur- 
chase the  said  lot  1,  etc.,  for  this  plaintiff. 

(443) 


§    579  PLEADINGS  (Ch.  11 

5.  That  plaintiff  was  well  aware  of  the  fact  that  said  lot  1,  etc., 
had  been  owned  by  the  said  G.  H.  at  a  date  shortly  prior  to  said 

—  day  of ,  19 — ,  but  that,  as  a  matter  of  fact,  defendant 

had  already  purchased  the  same  from  the  said  G.  H.  prior  to  said 
day  of  ,  19 — ,  without  the  knowledge  of  this  plain- 
tiff. 

6.  That  plaintiff,  relying  on  such  false  and  fraudulent  represen- 
tations of  defendant,  was  induced  to  and  did,  on  or  about  the 

day  of  ,  19 — ,  make  and*  enter  into  an  agreement  with  de- 
fendant, whereby  it  was  understood  and  agreed  by  and  between 
plaintiff  and  defendant  that  defendant  should  and  would  carry  on 
negotiations  with  the  said  G.  H.  for  the  purchase  of  the  two  above 
described  tracts  of  land;    that  by  the  terms  of  such  agreement  it 
was  understood  and  agreed  that  defendant  would  purchase  said 
lot  2,  etc.,  for  himself,  and  that  he  would  purchase  the  said  lot  1, 
etc.,  for  this  plaintiff,  and  that  the  purchase  price  of  each  of  said 
tracts  was  to  be  one-half  of  the  total  amount  paid  for  the  entire 
lots  1  and  2,  etc. ;  that  it  was  further  understood  and  agreed  by  and 
between  plaintiff  and  defendant  that  defendant  would  advance  the 
purchase  price  of  the  said  lot  1,  etc.,  for  this  plaintiff,  and  that  as 
security  for  the  repayment  thereof  defendant  should  take  the  legal 
title  of  said  tract  in  his  own  name,  and  hold  the  same  until  this 
plaintiff  should  repay  him  for  such  sum  so  advanced  for  the  plain- 
tiff, and  that  upon  such  repayment  defendant  should  convey  the  le- 
gal title  to  said  tract  to  this  plaintiff;    and  that  plaintiff  thereby 
bound  and  obligated  himself  to  repay  to  defendant  the  said  sum  so 
advanced  and  to  be  advanced  by  defendant  for  plaintiff. 

7.  That  at  the  time  of  entering  into  said  agreemerjt  with  this 
plaintiff,  defendant  made  such  false  and  fraudulent  representations 
aforesaid  to  this  plaintiff,  for  the  purpose  of  inducing  plaintiff  to 
withdraw  negotiations  for  the  purchase  of  said  lot  1,  etc.,  and  that 
defendant  did  not  intend  at  the  time  of  making  such  agreement  to 
carry  out  the  same,  but  that  he  intended  to  purchase  said  tract  of 
land  for  himself. 

8.  That,  at  the  time  of  entering  into  said  agreement  with  defend- 
ant, plaintiff  believed  and  relied  on  such  false  and  fraudulent  rep- 
resentations of  defendant,  and  that  plaintiff  did  not  know  that  de- 
fendant had  already  at  that  time  purchased  the  said  lot  2,  etc.,  and 

(444) 


Art.  4)  PETITION  §  579 

that  plaintiff  did  not  learn  of  the  same  until  long  afterwards,  when 
making  preparations  to  bring  this  suit. 

9.  That  plaintiff,  relying  on  such  agreement  and  promises  of  de- 
fendant so  made  that  he  would  purchase  said  tract  of  land  for  the 
plaintiff  and  advance  the  purchase  price  thereof  for  plaintiff,  re- 
frained from  carrying  on  any  further  negotiations  for  the  purchase 
of  said  land  himself,  and  did  not  make  any  further  attempts  to 
purchase  the  same  himself,  as  he  otherwise  would  have  done,  except 
for  such  promises  of  defendant. 

10.  That,  in  pursuance  to  said  contract  and  agreement,  defendant 

thereafter,  and  on  the day  of ,  19 — ,  did  so  purchase 

and  obtain  the  legal  title  to  said  southwest  quarter  of  the  said  lot 
1,  etc.,  from  the  said  G.  H.  and  that  defendant  did  so  advance  the 

'purchase  price  therefor,  and  did  so  take  the  legal  title  thereof  in 
his  own  name ;  but  that  plaintiff  does  not  know  and  has  been  un- 
able to  ascertain  the  amount  so  advanced  and  paid  by  defendant 
for  the  purchase  price  of  said  land. 

11.  That,  on  numerous  occasions  after  entering  into  said  agree- 
ment with  defendant,  plaintiff  inquired  of  the  defendant  whether 
he  had  purchased  said  premises  or  not,  but  that  at  all  times  prior 
to  the  day  of  ,  19 — ,  defendant  falsely  and  fraudu- 
lently informed  this  plaintiff  that  he  had  not  yet  been  able  to  obtain 
the  same. 

12.  That  on  or  about  the day  of ,  19 — ,  defendant 

informed  this  plaintiff  that  he  had  purchased  said  premises,  and 
that  immediately  thereafter  plaintiff  sold  his  home,  so  as  to  obtain 
money  with  which  to  carry  out  his  part  of  the  agreement,  and 
with  which  to  repay  defendant  for  the  amount  of  the  purchase  price 
of  said  tract  of  land  advanced  by  defendant,  and  that  plaintiff  has 
been  at  all  times  since  entering  into  said  agreement,  and  still  is, 
ready,  able,  and  willing  so  to  do. 

13.  That    immediately    thereafter,   and   on   numerous    occasions 
up  to  the  present  time,  plaintiff  has  requested  defendant  to  inform 
him  as  to  the  amount  so  advanced  and  paid  for  plaintiff  for  said 
tract  of  land,  and  has  requested  defendant  to  accept  repayment  of 
such  amount  and  to  convey  the  legal  title  to  said  lot  1,  etc.,  to  this 
plaintiff,  in  accordance  with  their  said  contract  and  agreement,  but 
that,  in  violation  thereof,  defendant  has  refused,  and  still  refuses,  so 
to  do. 

(445) 


§    579  PLEADINGS  (Cll.  11 

14.  That  thereafter,  on  the  day  01  ,  19 — ,  said  de- 
fendant sold  and  conveyed  an  undivided  one-half  interest  in  said 
lot  2,  etc.,  and  in  the  said  lot  1,  etc.,  to  one  E.  F.,  in  violation  of  said 
contract  and  agreement  between  plaintiff  and  defendant;   that  said 
E.  F.  is  now  the  owner  and  holder  thereof;   that  this  plaintiff  does 
not  know  and  has  been  unable  to  ascertain  the  amount  of  the  con- 
sideration which  defendant  received  from  said  E.  F.  for  such  one- 
half  interest  in  said  tract  of  land;    that  plaintiff  did  not  learn  of 
such  sale  until  long  afterwards. 

15.  That  the*  reasonable  value  of  said  lot  1,  etc.,  at  the  time  same 

was    purchased   by    defendant,   was    the   sum    of   • —   dollars, 

($ )  ;    that  the  reasonable  value  of  the  same  at  this  time  is 

the  sum  of dollars  ($ ),  and  that  the  reasonable  value 

of  a  one-half  interest  in  the  same  at  this  time  is  the  sum  of 

dollars  ($ )  ;   that  the  value  oS  the  use  of  said  land  from  the 

day  of  -,  19 — ,  up  to  the  present  time  is  reasonably 

worth  the  sum  of dollars  ($ ). 

Wherefore  the  plaintiff  prays  that  the  court  shall  ascertain  the 
amount  which  defendant  paid  for  the  purchase  price  of  said  lot  1, 
etc.,  so  that  plaintiff  may  tender  into  court  one-half  of  such  sum 
for  the  undivided  one-half  interest  to  which  defendant  still  holds 
the  legal  title,  and  so  that  the  court  may  ascertain  and  determine 
the  amount  which  the  plaintiff  should  pay  defendant,  and  that  upon 
such  tender  and  payment  that  the  court  by  its  decree  adjudge  the 
plaintiff  to  be  the  owner  of  an  undivided  one-half  interest  in  said 
premises,  free  and  clear  of  all  liens  and  incumbrances,  and  that  the 
defendant  be  required  to  convey  said  premises  to  plaintiff  by  a 
good  and  sufficient  deed,  and  that,  upon  his  failure  to  do  so  by  the 
time  to  be  fixed  by  the  court,  the  decree  herein  shall  stand  in  lieu 
of  said  conveyance,  and  that  the  plaintiff  have  judgment  against 
the  defendant  for  the  sum  of  dollars  ($ —  — ),  the  dif- 
ference between  the  market  value  of  such  one-half  interest  which 
defendant  is  unable  to  convey  to  plaintiff,  at  the  time  said  prem- 
ises were  purchased  by  defendant,  and  the  present  market  value 
thereof,  or  that  he  have  judgment  against  the  defendant  for  the  dif- 
ference between  one-half  of  the  purchase  price  of  the  same  paid  by 
the  defendant,  to  be  determined  by  the  court,  and  the  present  market 
value  of  an  undivided  one-half  interest  in  said  premises,  and  that 
the  plaintiff  have  judgment  against  defendant  for  the  further  sum 

(446) 


Art.  4)  PETITION  §  579 

of dollars  ($ ),  the  value  of  the  use  of  said  premises 

from ,  19 — ,  to  date ;   and  the  plaintiff  prays  for  such  other 

relief  as  may  be  just  and  equitable,  and  for  costs  of  this  suit. 

X.  Y.,  Attorneys  for  Plaintiff. 
(Verification.) 

PETITION  TO  FORECLOSE  MECHANIC'S  LIEN 

(Caption.) 

Said  plaintiff,  for  his  cause  of  action  against  the  said  defend- 
ants C.  D.  and  E.  F.,  and  against  the  said  defendants  G.  H.  Com- 
pany and  J.  K.  Company,  alleges  and  states : 

1.  That  on  or  about  the  day  of ,   19 — ,  the  said 

plaintiff  entered  into  a  contract  with  the  said  defendants  C.  D.  and 
E.  F.,  by  and  through  their  duly  authorized  architect  and  agent, 
M.  N.,  by  which  said  plaintiff  was  to  furnish  certain  material  and 
supplies  and  to  do  and  furnish  certain  work  and  labor  for  the  con- 
struction of  a  certain  building  for  the  said  defendants,  upon  the 
following  described  property,  to  wit:    (Describe  same)  of  which 
said  defendants  were  then  and  there  the  owners. 

2.  That  said  plaintiff  further  alleges  that  he  furnished  said  ma- 
terial and  supplies,  and  performed  and  furnished  said  work  and 
labor,  in  accordance  with  the  terms  and  conditions  of  said  con- 
tract, and  that  there  remains  due  and  payable  from  said  defend- 
ants to  this  plaintiff  the  sum  of  dollars   ($ ).     Said 

plaintiff  alleges  that  material  was  last  furnished  under  said  con- 
tract on  the day  of ,  19 — ,  and  that  labor  was  last  fur- 
nished and  performed  under  said  contract  on  the  day  of 

10 

,    i  y      . 

3.  Said  plaintiff  further  alleges  that,  in  order  to  obtain  a  lien 

upon  said  premises,  on  the  day  of ,  19 — ,  within  less 

than  four  months  after  said  material  and  labor  was  last  furnished, 
he  filed  a  verified  statement  in  the  office  of  the  court  clerk  of 

county,  state  of  Oklahoma,  containing  the  amount  due  him 

from   said  defendants  for  said  material  and  labor  furnished  and 
performed,  which  said  statement  further  showed  the  name  of  the 
owner  of  said  property,  the  names  of  the  claimant,  and  a  descrip- 
tion of  the  property  upon  which  said  work  was  done  and  material 
furnished   subject  to  said  lien,  and  that  due  notice  thereof  was 
served  on  the  owners  C.  D.  and  E.  F.    A  copy  of  said  statement, 

(447) 


§    579  PLEADINGS  (Ch.  11 

together  with  the  itemized  exhibit  therein  contained,  is  hereto  at- 
tached, marked  Exhibit  A,  and  made  a  part  of  this  petition. 

4.  And  the  said  plaintiff  alleges  that  he  has  performed  all  the  con- 
ditions and  requirements  contained  in  said  contract  in  accordance 
with  the  terms  thereof;  that  the  itemized  account  shown  in  said 
Exhibit  A  is  correct,  and  that  there  is  due  to  this  plaintiff  from  the 
said  defendant  the  sum  of  dollars  ($ -),  with  inter- 
est thereon  at  the  rate  of  per  cent,  per  annum  from  the 

-  day  of ,  19—. 

5:  The  said  plaintiff  further  alleges  that  the  said  defendants  G. 
H.  Company  and  J.  K.  Company  claim  some  lien  on  said  premises, 
but  that  their  claims  or  liens,  if  any,  are  inferior  and  junior  to  the 
interest  and  lien  of  this  plaintiff,  and  that  there  are  no  other 
claims  or  other  parties  claiming  any  lien  upon  said  premises,  or 
any  incumbrances  thereon,  other  than  hereinbefore  stated. 

Wherefore,   the   said   plaintiff   demands  judgment   against   said 

defendants,  C.  D.  and  E.  F.,  for  the  sum  of dollars  ($ ), 

with  interest  thereon  at  the  rate  of  per  cent,  per  annum 

from  the day  of ,  19 — ,  and  for  a  reasonable  attorney's 

fee  for  his  attorneys  herein,  and  that  upon  the  hearing  of  this  cause 
the  judgment  herein  be  declared  a  first  and  prior  lien  upon  said 
premises,  and  that  said  lien  be  foreclosed,  and  that  the  said  prem- 
ises be  ordered  sold,  according  to  law,  and  the  proceeds  of  said 
sale  be  applied,  first,  to  the  payment  of  the  judgment  in  favor  of 
this  plaintiff,  together  with  the  interest  thereon  and  the  costs  of 
this  action  and  said  attorney's  fee ;  the  residue,  if  any,  to  be  applied 
as  the  court  may  direct;  and  for  such  other  and  further  relief  as 
the  plaintiff  may  in  equity  be  entitled  to. 

X.  Y.,  Attorneys  for  Plaintiff. 

(Attach  copy  of  verified  lien  statement.) 

PETITION    IN    ACTION    ON    VERIFIED    ACCOUNT — PLAINTIFF    SUING    AS 

ADMINISTRATOR 

(Caption.) 

Comes  now  the  plaintiff,  A.  B.,  as  administrator  of  the  estate  of 
C.  D.,  deceased,  and  for  cause  of  action  against  the  defendant,  E.  F., 
alleges: 

That  defendant  is  indebted  to  the  plaintiff  in  the  sum  of 

dollars,  on  an  account  for  goods  sold  and  delivered  by  the  said 
(448) 


Art.  4)  PETITION  §  579 

C.  D.  to  the  defendant  at  his  request,  between  the  day  of 

,  19 — ,  and  the  day  of  ,  19 — ,  at  ,  for 

which  he  promised  to  pay  said  sura  of dollars. 

An  itemized  and  verified  statement  of  said  account  is  hereto  at- 
tached, marked  Exhibit  A,  and  made  a  part  of  this  petition,  and 
said  account  is  true  and  correct. 

That  no  part  of  said  sum  of  dollars  has  been  paid,  ex- 
cept the  sum  of dollars,  and  that  the  balance  thereof  of 

dollars  is  clue  and  payable  to  plaintiff  from  defendant. 

That  thereafter  on  or  about  the day  of  ,  19 — ,  said 

C.  D.  died  intestate  in  the  city  of ,  county  of ,  state  of 

Oklahoma,  and  a  resident  of  said  county;  that  on  or  about  the 
day  of ,  19 — ,  letters  of  administration  upon  the  es- 
tate of  said  C.  D.,  deceased,  were  duly  issued  and  granted  to  plain- 
tiff by  the  county  court  of -  county,  appointing  him  admin- 
istrator of  the  estate  of  said  deceased,  and  that  plaintiff  thereupon 
duly  qualified  and  entered  upon  his  duties  as  such  administrator, 
and  is  now  such  administrator. 

Wherefore  plaintiff  prays  judgment  against  the  said  defendant 
for  the  sum  of  —  —  dollars,  with  interest  thereon  at  the  rate  of 

6  per  cent,  per  annum  from  the  day  of  ,  19 — ,  and 

for  his  costs. 

(Signatures,). 

Attorneys  for  Plaintiff. 

(Attach  itemized  statement  of  account  as  Exhibit  A.) 


State  of  Oklahoma,  1 

L  gg   • 

County  of . J  " 


,  being  duly  sworn,  says :    That  he  is  the  plaintiff  above 

named,  and  that  the  above  and  foregoing  account  is  true  and  correct 
in  every  particular,  and  that  there  is  due  and  unpaid  thereon  from 

said  E.  F.  to  said  C.  D.,  deceased,  the  sum  of dollars,  with 

interest  thereon  at  the  rate  of per  cent,  per  annum,  from  the 

day  of — ,  19 — ,  as  set  forth  in  said  account. 

(Signature.) 

Subscribed  and  sworn  to  before  me,  this day  of  , 

19—. 

(Signature,) 
(Seal.)  Notary    Public. 

My  commission  expires . 

HON.PL.&  PRAC.— 29  (449) 


§    579  PLEADINGS  (Ch.  11 

* 
PETITION   IN  DAMAGE  SUIT — PERSONAL   INJURY 

(Caption.) 

Comes  now  the  said  plaintiff,  A.  B.,  and  for  her  cause  of  action 
against  the  defendants,  C.  D.  and  E.  D.,  and  each  of  them,  alleges 
and  states : 

1.  That  plaintiff  is  the  mother  of  F.  B.,  a  minor  of  the  age  of 

years,  and  that  the  defendants  herein  at  all  times  mentioned 

were  husband  and  wife,  and  were  the  owners  of  a  certain  auto- 
mobile, and  in  the  use  and  operation  of  said  automobile  as  herein- 
after alleged  they  were  acting  as  the  agents  of  each  other  and  within 
the  general  scope  of  their  employment  as  such. 

2.  That  heretofore,  to  wit,  on  or  about  the day  of , 

19 — ,  at  or  about  the  hour  of , M.,  of  said  day,  plain- 
tiff's said  son,  F.  B.,  was  riding  a  bicycle  southward  in  the  alley 

between  and  streets  in  the  city  of  ,  

county,  Oklahoma,  and  that  as  plaintiff's  said  son  emerged  from  the 
said  alley  into street  in  a  southerly  direction,  the  said  de- 
fendant E.  D.  was  operating  defendants'  said  automobile  westward 

on  street,  and  that  at  said  time  the  said  defendant  E.  D. 

was  operating  said  automobile  at  a  high,  dangerous,  and  excessive 
rate  of  speed,  to  wit,  more  than miles  per  hour. 

3.  That  as  said  automobile  of  said  defendants  approached  the 
point  hereinbefore  referred  to  where  plaintiff's  son  rode  his  said 

bicycle  into  street,  the  said  defendants,  and  each  of  them, 

failed  and  neglected  to  give  any  notice  or  warning  whatever  of 
the  approach  of  said  car,  and  failed  and  neglected  to  keep  a  proper 
lookout  for  persons  who  might  be  in  the  street  immediately  in  front 
of  them  at  said  time,  and  failed  and  neglected  to  have  their  said 
automobile  under  proper  control,  and  that  the  said  defendants,  and 
each  of  them,  moved  and  propelled,  or  caused  their  said  automo- 
bile to  be  moved  and  propelled,  over  the  person  of  plaintiff's  son, 
and  inflicted  upon  him  painful,  permanent,  and  serious  injuries  as 
hereinafter  alleged. 

4.  That  the  acts  of  the  said  defendants,  and  each  of  them,  in 
driving  and  causing  to  be  driven  the  said  automobile  as  aforesaid, 
were  in  direct,  open,  and  notorious  violation  and  contravention  of 

certain  sections  of  the  ordinances  of  the  city  of  ,  for  the 

year ,  v^hlch  ordinances  were  in  full  force  and  effect  on  the 

(450) 


Art.  4)  PETITION  §  579 

said day  of ,  19 — ,  being  sections and , 

and  being  in  words  and  figures  as  follows,  to  wit :     (Set  forth  sec- 
tions of  ordinances  violated). 

5.  That  the  injuries  hereinafter  referred  to,  which  were  sustained 
by  plaintiff's  son,  were  not  caused  by  any  fault  or  neglect  of  his 
or  any  fault  or  neglect  of  this  plaintiff's,  but  were  caused,  wholly, 
directly,  and  proximately  by  and  on  account  of  the  negligence  of 
the  defendants,  and  each  of  them,  as  hereinbefore  set  out. 

6.  Plaintiff  further  states  that  when  her  son  was  struck  by  said 
automobile  as  aforesaid,  the  skin  covering  his  body  was  broken  in 
a  number  of  places,  the  flesh  severely  bruised,  and  he  immediately 
became  sick,  sore,'  lame,  and  disabled ;  that  the  bones  in  plaintiff's 
son's  right  leg  at  the  knee  joint,  and  both  below  and  above  the 
knee  joint,  were  crushed,  fractured,  and  broken,  and  the  nerves,  ten- 
dons, ligaments,  and  muscles  surrounding  said  knee  cap,  both  above 
and  below  were  severely  strained,  torn,  and  injured,  and  that  on 
account  thereof  plaintiff's  said  son  has  become  permanently  injured, 
and  his  right  leg  has  become  shortened  and  stiffened,  and  he  has 
been  permanently  scarred,  crippled,  and  disfigured  for  life,  and  that 
said  limb  has  greatly  impaired  plaintiff's  son's  earning  capacity  and 
his  power  of  locomotion. 

7.  Plaintiff  further  states  that,  on  account  of  said  injuries  to  her 
said  son,  she  was  forced  to  procure  for  him  a  physician  and  medical 
aid,  and  has  become  liable  and  bound  to  pay  for  such  services,  in- 
cluding the  hospital  bill,  the  sum  of  $ ,  which  amount  is  a 

reasonable  charge  therefor,  and  plaintiff  further  states  that  at  the 
time  her  said  son  was  injured,  as  aforesaid,  he  was  a  strong,  robust, 

healthy,  able-bodied  boy, years  of  age,  and  was  employed  by 

,  and  was  earning  from  his  employment  the  sum  of  $ 

per  week,  all  of  which  plaintiff's  son  contributed  to  her  support, 
health,  and  comfort. 

8.  Plaintiff  further  states  that  since  her  said  son  was  injured,  as 
aforesaid,  he  has  been  wholly  incapacitated  to  do  or  perform  any 
work  or  labor,  has  contributed  nothing  whatever  to  her  support, 
and  she  verily  believes  that  it  will  be  a  long  time  before  plaintiff's 
son,  F.  B.,  will  again  be  able  to  work  and  earn  money  and  contribute 
to  the  plaintiff  herein,  and  that  she  has  been  deprived  of  his  earn- 
ings and  services  until  he  becomes  twenty-one  years  of  age  on  ac- 
count of  said  injuries,  and  on  account  of  the  loss  of  the  services  of 

(451) 


§    579  PLEADINGS  (Ch.  11 

her  said  son,  as  aforesaid,  and  the  amount  she  has  become  liable  and 
bound  to  pay  for  medical  expenses  and  services,  she  has  sustained 

damages  in  the  sum  of  dollars,  no  part  of  which  has  ever 

been  paid. 

Wherefore  plaintiff  prays  that  she  have  and  recover  of  and  from 

the  defendants,  and  each  of  them,  the  sum  of —  dollars,  and 

for  her  costs  of  this  action.  ,  Attorneys  for  Plaintiff. 

PETITION  IN  ACTION  FOR  WRONGFUL  DEATH 

(Caption.) 

Comes  now  the  plaintiff,  A.  B.,  administrator  of  the  estate  of  C. 
D.,  deceased,  and  for  his  cause  of  action  against  the  defendant,  E. 
F.  &  Co.,  a  corporation  existing  under  and  by  virtue  of  the  laws 
of  the  state  of ,  states : 

That  on  the day  of  — : ,  19 — ,  defendant  owned,  main- 
tained, and  operated  in  the  city  of ,  Oklahoma,  a  system  of 

electric  lights,  and  that  by  means  of  wires  the  electric  current  was 

carried  over,  upon,  and  along  the  street  of  said  city  of ,  from 

the  power  house  to  the  various  points  of  service  in  said  city;   that 

during  the  night  of  the day  of ,  19 — ,  or  early  on  the 

morning  of  the day  of ,  19 — ,  said  company's  wires  be- 
came disabled  and  out  of  repair,  and,  being  either  broken,  or  disen- 
gaged from  their  fastenings,  fell  to  the  ground,  upon  the  sidewalk 

and  crossing  in  the  said  city  of ,  at  the  intersection  of  — 

street  and avenue  in  said  city,  and  said  defendant  negligently 

permitted  said  wire  to  remain  so  grounded  and  lying  upon  said 
street  crossing  from  about o'clock M.  until  after  day- 
light in  the  morning,  when  said  street  was  thronged  with  passers-by; 
that  the  defendant,  C.  D.,  while  passing  along  said  street  about  or 
a  little  after  daylight,  had  his  attention  called  to  said  obstruction 
lying  upon  said  crossing,  and  being  ignorant  of  the  character  of 
said  wire,  and  presuming,  and  having  a  right  to  presume,  that  de- 
fendant would  not  permit  a  live  wire  to  remain  under  the  feet  of 
passers-by  upon  so  crowded  a  thoroughfare,  took  hold  of  same, 
to  cast  it  aside,  out  of  the  way  of  pedestrians,  and  was  .killed  by 
the  powerful  current  with  which  said  wire  was  at  the  time  charged. 

And  plaintiff  alleges  that  said  C.  D.,  deceased,  came  to  his  death 
by  the  gross  negligence  and  wanton  misconduct  of  defendant,  its 
agents  and  employees,  and  that  deceased  came  to  his  death  without 

(452) 


Art.  4)  PETITION  §  579 

fault  on  his  part,  and  to  the  damage  of  his  estate  in  the  sum  of 

dollars. 

Wherefore  plaintiff  prays  judgment  in  the  sum  of  —       -  dol- 
lars, and  his  costs  herein  expended. 

,  Attorneys  for  Plaintiff. 

MONEY  DUE  FOR  SERVICES  PERFORMED 

Petition 
(Caption.) 

Comes  now  the  plaintiff,  A.  B.,  and  for  his  cause  of  action  against 
the  said  defendants  alleges  and  states : 

1.  That  said  defendants,  C.  F.  and  D.  F.,  are,  and  were  at  all 
times  hereinafter  mentioned,  copartners,  doing  business  under  the 
firm  name  of  F.  Brothers,  which  firm  is  and  was  composed  of  C. 
F.  and  D.  F. 

2.  That  on  or  about  the day  of ,  19 — ,  under  such 

firm  name  and  style,  defendants  made  and  entered  into  an  oral 
contract  with  this  plaintiff,  duly  accepted  by  both  plaintiff  and  de- 
fendants, whereby  plaintiff  was  employed  as  general  manager  and 

buyer  of  defendants'   shoe   stores   in  the  city  of  ,  

county,   Oklahoma ;    that   for   and  in   consideration   of   plaintiff's 
services,  as  such  general  manager  and  buyer,  he  was,  under  and 
by   the  terms  of   said   contract,   to   receive   from   defendants   the 
sum  of  dollars   ($ )   per  week  as  salary,  and  in  ad- 
dition thereto  a  bonus  or  commission  of  five  per  cent.  (5%)  of  the 
increase  in  business  of  defendants  said  shoe  stores  during  the  period 
that  plaintiff  should  continue  in  the  employ  of  defendants;    that 
under  the  terms  of  said  contract,  it  was  agreed  that  settlement  of 
said  bonus  or  commission  was  to  be  made  every  six  months,  or 
the  part  thereof  that  plaintiff  continued  in  the  employ  of  said  de- 
fendants ;   that  under  the  terms  of  said  contract,  and  in  accordance 
with  the  uniform  custom  of  determining  increase  in  business,  the 
increase  in  business  of  defendants'  said  shoe  stores  was  to  be  de- 
termined by  comparing  the  business  of  each  calendar  month  with 
the  business  done  in  the  same  calendar  month  of  the  preceding 
year. 

3.  That  in  accordance  with  said  contract  plaintiff,  on  or  about  the 
day  of ,  19 — ,  entered  upon  the  duties  as  the  general 

(453) 


§§  579-580  PLEADINGS  (Ch.  11 

manager  and  buyer  of  defendants'  shoe  stores  in  the  city  of , 

Oklahoma,  and  so  continued  up  to  on  or  about  the  day  of 

,  19 — ,  that  the  increase  in  business  of  defendants'  said  shoe 

stores  in  the  city  of  ,  Oklahoma,  during  said  period  while 

plaintiff  so  continued  in  the  employ  of  defendants  as  such  general 

manager  and  buyer,  amounted  to  a  total  of dollars  ($ -. — )  ; 

that  an  itemized  schedule  showing  the  said  increase  by  calendar 
months  for  said  period  is  hereto  attached,  marked  Exhibit  A  and 
made  a  part  hereof;  that  under  the  terms  of  said  contract  plaintiff 
became  and  is  entitled  to  a  five  per  cent.  (5%)  bonus  or  commis- 
sion of  such  increase  for  said  period,  or  the  sum  of  dol- 
lars ($ ). 

4.  That  defendants  have  taken  and  received  the  full  benefits  of 
said  contract  and  of  plaintiff's  work  thereunder,  but  have  failed  and 
refused  to  pay  the  plaintiff  for  his  work  and  services  in  carrying  out 
said  contract,  though  often  requested  so  to  do,  except  the  sum  of 

$ per  week,  and  have  failed  and  refused  to  pay  the  plaintiff 

his  said  five  per  cent.  (5%}  bonus  or  commission  on  the  increase  in 
business  of  defendants'  said  shoe  stores  during  the  time  which 
plaintiff  continued  in  the  employ  of  defendants,  though  often  re- 
quested to  pay  the  same,  and  that  there  is  now  due  plaintiff  for 
said  work  and  services  under  said  contract  the  sum  of dol- 
lars ($ ). 

Wherefore  plaintiff  prays  judgment  against  the  said  defendants 

for  the  sum  of  dollars    ($ ),  together  with  interest 

thereon  at  the  rate  of  six  per  cent.  (6%)  per  annum  from  the 

day  of ,  19 — ,  and  for  his  costs  herein  expended. 

X.  Y.,  Attorney  for  Plaintiff. 

(Verification.) 

(Attach  exhibit.) 

DIVISION  III. — JOINDER,  SPLITTING,  CONSOLIDATION,  AND 

SEVERANCE 

§  580.    Joinder — Forms  of  motions 

"The  plaintiff  may  unite  several  causes  of  action  in  the  same 
petition,  whether  they  be  such  as  have  heretofore  been  denomi- 
nated legal  or  equitable,  or  both,  where  they  all  arise  out  of  any  one 
of  the  following  classes : 

(454) 


Art.  4)  PETITION  §  580 

"First.  The  same  transaction,  or  transactions,  connected  with  the 
same  subject  of  action. 

"Second.  Contracts,  express  or  implied. 

"Third.  Injuries,  with  or  without  force,  to  person  and  property, 
or  either. 

"Fourth.  Injuries  to  character. 

"Fifth.  Claims  to  recover  the  possession  of  personal  property, 
with  or  without  damages  for  the  withholding  thereof. 

"Sixth.  Claims  to  recover  real  property,  with  or  without  damag- 
es for  the  withholding  thereof,  and  the  rents  and  profits  of  the  same. 

"Seventh.  Claims  against  a  trustee,  by  virtue  of  a  contract,  or 
by  operation  of  law., 

"But  the  causes  of  action  so  united  must  all  belong  to  one  of  the 
classes,  and  must  affect  all  the  parties  to  the  action,  except  in  ac- 
tion to  enforce  mortgages  or  other  liens.95 

85  Rev.  Laws  1910,  §  4738. 

An  action  in  the  name  of  vendees  purchasing  by  separate  deeds  the  undi- 
vided interest  of  certain  heirs,  and  also  in  the  name  of  such  heirs,  to  de- 
clare a  purchaser  of  the  same  land  from  another  a  trustee,  held  not  a  mis- 
joinder  of  causes  of  action.  Smith  v.  Kennedy,  46  Okl.  493,  149  P.  197. 

Action  by  a  client  against  his  attorney,  his  attorney's  wife,  and  a  third 
person  to  have  a  trust  declared  and  recover  damages,  where  attorney  fraud- 
ulently procured  conveyance  of  client's  property  to  his  wife  and  by  the  wife 
to  the  third  person,  was  not  an  improper  joinder'  of  causes  of  action.  Maloy 
v.  Johnson,  121  P.  257,  32  Okl.  92. 

Causes  of  action  under  the  mining  act  and  under  the  common  law  may  be 
joined.  Cheek  v.  Missouri,  K.  &  T.  Ry.  Co.,  131  P.  617,  89  Kan.  247. 

Under  Code  Civ.  Proc.  §  83,  providing  that  causes  of  action  arising  out  of 
the  same  transaction  may  be  joined,  and  that  causes  of  action  so  united  "must 
affect  all  the  parties  to  the  action,"  an  action  against  an  assessment  insur- 
ance association  and  the  holder  of  an  insurance  certificate  to  enforce  an  at- 
torney's lien  for  services  to  the  holder  of  the  certificate  cannot  be  joined  with 
an  action  on  a  bond  given  under  Sess.  Laws  1885,  c.  131,  requiring  the  officers 
of  each  such  association  to  give  bond  for  the  proper  payment  and  disburse- 
ment of  all  moneys  which  come  into  their  hands  and  for  the  faithful  per- 
formance of  all  contracts  made  with  certificate  holders.  .  Hentig  v.  South- 
western Mut.  Benevolent  Ass'n,  25  P.  878,  45  Kan.  462. 

In  an  action  under  the  mutual  demurrage  act  (Laws  1905,  c.  345),  it  is 
proper  to  unite  all  claims  for  damages  directly  flowing  from  one  transaction, 
whether  they  be  such  as  are  determined  in  amount  by  the  statute  and  are 
generally  designated  as  penalties  or  as  are  not  so  designated.  Star  Grain  & 
Lumber  Co.  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  116  P.  906,  85  Kan.  281. 

Where  a  treasurer  of  the  board  of  education  gives  an  ordinary  official 
bond,  and  afterwards,  upon  the  order  of  the  board,  gives  an  additional  bond 
with  substantially  the  same  condition  as  the  first,  but  with  different  sure- 

(455) 


§    580  PLEADINGS  (Ch.  11 

In  this  section  the  term  "cause  of  action"  means  a  redressible 
wrong;  its  elements  being  the  wrong  and  the  relief  provided. 

The  "subject  of  action"  is  a  primary  right  and  its  infringement. 
The  term  "transaction"  is  used  in  the  first  clause  as  expressing  all 
the  acts,  or  groups  of  related  acts,  which  go  to  make  up  one  en- 
tire project,  system,  or  deal,  and  in  the  latter  clause  it  includes  only 
such  acts,  or  groups  of  acts,  as  in  themselves  constitute  separate, 

ties,  and  he  fails  to  deliver  to  his  successor  in  office  the  balance  of  the  school 
fund  due  to  the  school  corporation,  and  the  board  commences  an  action 
therefor  on  both  bonds,  two  causes  of  action  are  not  improperly  joined.  Gil- 
bert v.  Board  of  Education,  25  P.  226,  45  Kan.  31,  23  Am.  St.  Rep.  700. 

A  petition  declaring  on  a  purchaser's  promise  to  pay  in  cash,  instead  of  in 
stock,  if  within  a  certain  time  a  cement  plant  had  not  been  established,  has 
been  held  not  demurrable  for  misjoinder,  though  it  alleged  bad  faith  and 
sought  a  receivership.  Delgarno  v.  Middle  West  Portland  Cement  Co.,  145  P 
823,  93  Kan.  654. 

In  an  action  by  one  holding  a  tax  title  to  land,  an  answer  setting  up  a  gen- 
eral denial,  facts  showing  plaintiff's  title  in  the  land  to  be  invalid,  and  a 
third  count  alleging  that  after  judgment  was  first  rendered  in  the  case,  and 
subsequently  set  aside,  but  before  the  vacation,  plaintiff  sold  the  land,  and 
appropriated  the  proceeds  to  his  own  use,  with  a  prayer  for  recovery  of 
the  value  of  the  land,  did  not  show  a  misjoinder  of  causes.  Flint  v.  Dulany, 
15  P.  208,  37  Kan.  332. 

There  was  no  misjoinder  of  causes  of  action  in  a  petition  by  co-owners  of 
property  destroyed  by  fire  set  by  sparks  from  defendant's  locomotive,  to  re- 
cover the  value  of  the  property,  wherein  were  joined,  as  plaintiffs,  insurance 
companies  which  had  paid  losses  on  the  property,  and  which  sought  to  be 
subrogated  to  the  rights  of  the  owners  under  such  judgment  as  might  be  ren- 
dered in  favor  of  the  latter.  Atchison,  T.  &  S-  F.  B.  Co.  v.  Huitt,  41  P.  1051, 
1  Kan.  App.  788. 

A  married  woman  deposited  notes,  secured  by  a  mortgage  on  her  land,  as 
collateral  security  for  her  husband's  debt  to  a  bank.  Interest  was  after- 
wards paid  on  the  notes.  The  mortgage  was  foreclosed,  and  the  land  bid  in 
by  the  mortgagee,  who  took  possession,  and  received  the  rents  and  profite. 
The  husband  afterwards  paid  the  debt  in  full.  No  part  of  the  interest  paid, 
or  of  the  proceeds  of  the  land,  had  been  applied  to  the  debt.  The  wife  sues 
the  bank  to  obtain  an  accounting,  a  reconveyance  of  her  land,  and  a  can- 
cellation of  the  personal  judgment  rendered  against  her  in  the  foreclosure 
suit.  Held  to  state  only  one  cause  of  action.  Washington  Nat.  Bank  v. 
Woodrum,  55  P.  330,  60  Kan.  34. 

Guardian. — Where  a  guardian  gave  two  additional  bonds,  conditioned  the 
same  as  his  guardianship  bond,  the  sureties  on  the  several  bonds  could  be 
joined  in  one  suit,  for  the  amount  due  from  the  guardian  to  his  successor. 
People's  Bank  &  Trust  Co.  v.  Nelson,  132  P.  493,  37  Okl.  500. 

In  an  action  against  a  former  guardian  of  certain  minors  for  an  account- 
ing, allegations  of  fraud,  waste,  mismanagement,  and  wrongful  appropriation 
of  the  minors'  property  did  not  render  the  petition  objectionable  for  mis- 
joinder  of  causes  of  action.  Charles  v.  Witt,  129  P.  140,  88  Kan.  484. 

(456) 


Art.  4)  PETITION  §  580 

redressible  wrongs;  and  they  are  connected  with  the  subject  of 
action  whenever  they  affect,  grow  out  of,  or  constitute  separate  in- 
fringements of,  the  same  right.96 

All  the  rights  of  the  parties,  both  legal  and  equitable,  so  far  as 
they  are  consistent  with  one  another  and  affect  the  rights  of  the 
same  parties,  may  be  united  in  one  action.97 

Causes  of  action  in  tort  may  be  joined  in  separate  counts  with 
causes  of  action  in  contract,  where  they  arise  out  of  the  same  trans- 
action, connected  with  the  same  subject,  and  affect  all  parties.98 

9 
06  Stone  v.  Case,  124  P.  .060,  34  Okl.  5,  43 'L.  R.  A.   (N.  S.)  1168. 

97  Tootle  v.  Kent,  73  P.  310,  12  Okl.  674;    Huey  v.  Starr,  101  P.  1075,  79 
Kan.  781,  rehearing  denied  104  P.  1135,  79  Kan.  781. 

In  action  for  damages  from  mortgagee's  breach  of  contract  to  make  re- 
leases to  purchasers  from  mortgagor,  and  to  enjoin  a  foreclosure  sale  and 
to  quiet  title,  there  was  no  misjoinder  of  causes.  Nelson  v.  Hoskinson,  172 
P.  993,  103  Kan.  46. 

Where  proof  showed  mutual  mistake  of  fact  as  to  description  of  block  on 
which  insured  property  was,  cause  of  action  to*  reform  policy  was  properly 
joined  with  action  to  recover  for  loss  due  thereunder.  State  Mut.  Ins.  Co.  v- 
Green,  62  Okl.  214,  166  P.  105,  L.  R.  A.  1917F,  663. 

A  cause  of  action  for  damages  may  be  joined  with  one  to  abate  the  source 
of  the  injury  as  a  nuisance.  Drinkwater  v.  Sauble,  26  P.  433,  46  Kan.  170. 

Under  Rev.  Laws  1910,  §  4738,  a  party  may  unite  a  cause  of  action  to  re- 
cover real  property  and  a  cause  of  action  for  the  value  of  the  rents  and- 
profits  thereof.  Rodman  v.  Davis,  127  P.  411,  34  Okl.  766.  In  ejectment,  the 
plaintiff  may  sue  for  rent  due  and  foreclose  his  statutory  landlord's  lien  by 
attachment  proceedings.  Id. 

An  action  for  the  partition  of  real  estate  can  be  joined  with  an  action  for 
the  recovery  of  the  rents  and  profits  thereof.  Edde  v.  Pash-pah-o,  48  P.  S84, 
5  Kan.  App.  115. 

Where  a  petition  seeks  to  dissolve  a  partnership  and  secure  an  accounting 
and  the  appointment  of  a  receiver  and  distribution  of  the  proceeds,  and  also 
seeks  to  recover  damages  for  depreciation  of  a  stock  of  goods  and  for  loss  of 
profits  by  reason  of  the  closing  of  plaintiff's  business  and  for  the  destruc- 
tion of  his  financial  standing,  the  causes  are  properly  joined  in  the  same 
petition,  for  the  reason  that  all  arise  out  of  the  same  transaction  connected 
with  the  same  subject-matter.  Tootle  v.  Kent,  73  P.  310,  12  Okl.  674. 

98  Summers  v.  Gates,  55  Okl.  96,  154  P.  1159. 

Causes  of  action  in  tort  may  be  joined  in  separate  counts  with  causes  of 
action  in  contract,  when  all  arise  out  of  the  same  transaction  or  transactions 
connected  with  the  same  subject-matter  and  affect  all  the  parties.  Aylesbury 
Mercantile  Co.  v.  Fitch,  99  P.  1089,  22  Okl.  475,  23  L.  R.  A.  (N.  S.)  573. 

A  petition  setting  up  several  causes  of  action,  which  are  all  alleged  to  have 
resulted  from  defendant's  failure  to  perform  his  duties  as  manager  of  a  cor- 
poration, purchasing,  selling,  shipping,  and  handling  grain,  live  stock,  and 
other  farm  products,  is  not  subject  to  demurrer  on  the  ground  of  misjoinder 
of  causes  of  action  sounding  in  tort  and  on  contract.  Hoffman  v.  Farmers' 
Co-op.  Shipping  Ass'n,  97  P.  440,  78  Kan.  561. 

(457) 


§    580  PLEADINGS  (Cll.  11 

Where  the  causes  of  action  joined  in  one  petition  are  all  of  the 
same  class,  and  arose  under  the  same  statutory  provisions,  and  the 
parties  are  the  same,  and  the  venue  the  same,  and  allegations,  de- 
fenses, and  relief  sought  are  similar  or  the  same,  the  only  differ- 
ence being  in  time  and  amount,  such  causes  are  properly  joined." 

Where  a  course  of  wrongful  conduct  results  in  separate  injuries, 
the  injured  party  need  not  bring  separate  suits,  but  may  recover  all 
the  damages  in  one  suit.1 

In  an  action  for  personal  injuries,  all  the  acts  of  negligence  which 
caused  the  injury  may  be  alleged  in  the  same  paragraph  without 
constituting  a  misjoinder  of  causes  of  actidn.2 

Causes  of  action  to  recover  usury  paid  at  different  times  on 
different  loans  may  be  joined  in  one  petition,  when  separately  stat- 
ed and  numbered.3 

Causes  of  action  for  reformation  and  specific  performance  of  the 
reformed  instrument  may  be  joined.4 

That  several  persons,  each  of  whom  has  a  special  interest  in  hav- 
ing a  street  kept  open  for  travel,  join  in  an  action  for  that  purpose, 
does  not  involve  a  misjoinder  of  causes  of  action.5 

In  a  suit  for  commission,  a  real  estate  broker  may  join  a  count 
for  reasonable  value  of  his  services  with  a  count  on  a  contract  to 
pay  a  stated  commission.6 

A  cause  of  action  against  a  constable  for  a  breach  of  the  con- 
dition of  his  official  bond,  which  is  joint  and  several,  may  be  joined 
in  the  same  action  with  a  cause  of  action  against  the  sureties  on 
such  bo'nd,  for  the  same  breach  of  the  condition  thereof.7 

A  bill  by  the  widow  of  a  deceased  grantor  as  administratrix,  and 
for  herself,  to  declare  a  mortgage,  purporting  to  be  executed  by  her 

99  First  Nat.  Bank  of  Tishoiningo  v.  Ingle,  132  P.  895,  37  Okl.  276. 

Causes  of  action  to  recover  usury  paid  at  different  times  on  different  loans 
of  the  same  class,  and  affecting  the  same  parties,  may  properly  be  joined  in 
one  petition  when  separately  stated  and  numbered  (following  State  Bank  of 
Paden  v.  Lanam,  34  Okl.  485,  126  Pac.  220).  First  Nat.  Bank  of  Tishomingo 
v.  Latham,  132  P.  891,  37  Okl.  286. 

1  Harrell  v.  Scott,  51  Okl.  373,  151  P.  1169. 

2  Enid  Electric  &  Gas  Co.  v.  Decker,  128  P.  708,  36  Okl.  367. 
s  State  Bank  of  Paden  v.  Lanam,  126  P.  220,  34  Okl.  485. 

*  Painter  v.  Fletcher,  81  Kan.  195,  105  P.  500. 

6  Bissey  v.  City  of  Marion,  104  Kan.  311,  178  P.  611, 

6  Berry  v.  Craig,  91  P.  913,  76  Kan.  345. 

7  Schilling  v.  Black,  31  P.  143,  49  Kan.  552. 

(458) 


Art.  4)  PETITION  §  580 

husband  and  herself,  and  recorded  before  their  general  warranty 
deed,  a  forgery,  and  that  it  was  not  a  lien  on  the  land,  and  for  oth- 
er relief,  does  not  misjoin  causes  of  action.8 

A  cause  of  action  by  a  husband  for  fraud  inducing  exchange  of 
land  for  corporate  stock  may  properly  be  joined  with  his  wife's 
cause  of  action  for  fraud  in  being  induced  to  execute  a  mortgage  on 
her  separate  property  to  secure  her  husband's  obligations.9 

An  action  against  a  sheriff  for  failing  and  refusing  to  levy  an 
attachment,  and  an  action  for  failing  and  refusing  to  levy  an  execu- 
tion in  the  same  case,  after  judgment,  may  be  joined  in  the  same 
petition.10 

In  an  action  against  a  warehouseman  for  loss  of  goods  it  is  com- 
petent for  the  owner  to  set  up  his  cause  of  action  in  two  counts, 
one  upon  an  express  agreement  as  to  the  character  of  the  storage 
building  and  the  care  exercised,  and  the  other  on  the  implied  un- 
dertaking to  provide  a  safe  place.11 

Except  in  actions  to  foreclose  liens,  several  causes  of  action  can- 
not be  united  in  one  petition,  unless  they  all  arise  out  of  the  same 
transaction,  and  are  connected  with  the  same  subject  of  action,  and 
affect  all  the  parties.12 

Several  causes  of  action  cannot  be  joined  in  one  suit  except  in 
actions  to  enforce  liens,  unless  each  cause  affects  each  party  to  the 
suit.13 

In  a  chattel  mortgagee's  action  against  several  for  conversion  of 
mortgaged  property,  a  proposed  amendment  charging  one  defend- 
ant as  a  trustee  of  the  proceeds  of  a  sale  did  not  affect  all  parties  to^ 

8  Keys  v.  Mathes,  16  P.  436,  38  Kan.  212. 

9  Phillips  v.  Mitchell    (Okl.)   172  P.  85,  writ  of  error  dismissed  248  U.  S. 
531,  39  S.  Ct.  7,  63  L.  Ed.  405. 

10  Chittenden  v.  Crosby,  48  P.  209,  5  Kan.  App.  534. 

11  Locke  v.  Wiley,  105  P.  11,  81  Kan.  143,  24  L.  R.  A.  (N.  S.)  1117,  19  Ann. 
Cas.  241. 

12  Harrod  v.  Farrar,  74  P.  624,  68  Kan.  153;    Gardner  v.  Board  of  Com'rs 
of  City  of  Leavenworth,  94  Kan.  509,  146  P.  1000. 

13  Bryan  v.  Sullivan,  55  Okl.  109,  154  P.  1167. 

Except  in  cases  to  enforce  liens,  it  is  a  prerequisite  to  the  joinder  of 
causes  of  action  in  a  pleading  that  all  the  causes  should  affect  all  the  par- 
ties to  the  action.  Benson  v.  Battey,  78  P.  844,  70  Kan.  288,  3  Ann.  Cas.  283. 

Under  Code,  §  S3,  permitting  the  joinder  in  the  same  petition  of  several 
causes  of  action  affecting  all  the  parties  to  the  action,  the  petition  is  de- 
murrable,  the  allegations  as  to  one  cause  of  action  warranting  relief  to  only 
one  plaintiff.  New  v.  Smith,  74  P.  610,  68  Kan.  807. 

(459) 


§  580  PLEADINGS  (Ch.  11 

the  action,  an$,  as  the  two  causes  could  not  be  united  in  one  petition, 
was  properly  refused.14 

Where,  in  mechanic's  lien  proceedings,  plaintiff  alleged  in  his 
petition  a  cause  of  action  against  the  contractors,  entitling  him  to 
a  judgment  upon  their  account  for  material  furnished,  and  to  a 
decree  foreclosing  his  lien  against  the  buildings  of  the  owners,  and 
also  endeavored  to  allege  and  recover  on  a  contract  between  him 
.and  the  owners  of  the  buildings,  alleging  that  the  owners  agreed 
that  they  would  pay  the  account  of  the  contractors  for  the  ma- 
terial furnished,  there  was  a  misjoinder  of  causes  of  action,  and  the 
court  properly  sustained  a  motion  to  strike  out  that  part  of  the 
petition  seeking  to  recover  personal  judgment  against  the  owners.15 

Claims   affecting   several   defendants,   which   might   have   been 

14  First  Nat.  Bank  v*  City  Nat.  Bank  of  Wellington,  Tex.    (Okl.)    175  P. 
253. 

15  Jones  v.  Balsley,  111  P.  942,  27  Okl.  220. 

The  joinder  of  civil  actions,  whether  legal  or  equitable,  is  governed  by 
Code  Civ.  Proc-  §  83,  and  the  test  whether  such  causes  of  action  fall  within 
any  of  the  classes  specified  in  such  section  is  to  be  determined  by  the  pro- 
vision that  the  causes  of  action  so  united  must  all  belong  to  one  of  these 
classes  and  affect  all  the  parties  to  the  action,  except  in  actions  to  enforce 
mortgages  or  other  liens,  and  does  not  justify  an  action  on  notes  given  to 
secure  loans  made  by  a  corporation  for  building  a  creamery,  where  plaintiff 
and  one  of  the  defendants  signed  all  of  the  notes,  and  two  of  the  defendants 
signed  for  the  notes,  and  one  signed  three  of  the  notes,  and  some  of  them 
were  given  in  renewal.  Mentzer  v.  Burlingame,  81  P.  196,  71  Kan.  581. 

A  cause  of  action  against  one  party  on  a  lease  and  one  on  a  separate  and 
distinct  writing,  wherein  another  party  guaranties  that  a  certain  part  of 
the  rent  will  be  paid,  cannot  be  joined  in  a  single  action.  Marshall  v.  Saline 
*River  Land  &  Mineral  Co.,  89  P.  905,  75  Kan.  445. 

Two  persons  could  not  join  in  one  action  causes  on  an  insurance  policy  for 
the  loss  of  property  part  of  which  was  owned  by  them  jointly  and  part  by 
each  separately.  State  Ins-  Co.  of  Des  Moines,  Iowa,  v.  Belford,  42  P.  409, 
2  Kan.  App.  280- 

Where  a  cause  of  action  arising  out  of  a  partnership  transaction  is  joined 
with  one  arising  out  of  an  individual  transaction,  there  is  a  misjoinder. 
Citizens'  State  Bank  v.  Frazee,  56  P.  506,  8  Kan.  App.  638. 

When  the  territorial  board  of  equalization,  in  equalizing  the  returns  of  the 
several  counties,  raise  a  certain  county  65  per  cent,  above  its  true  value,  and 
450  persons  join  in  a  suit  to  restrain  such  raise  as  to  their  individual  prop- 
erties, there  is  an  improper  joinder;  the  causes  of  action  being  several,  and 
not  joint.  Weber  v.  Dillon,  54  P.  894,  7  Okl.  568. 

A  cause  of  action  against  a  board  of  county  commissioners  in  favor  of  an 
ex-treasurer  thereof,  for  an  accounting  and  settlement  of  his  accounts  as  such 
treasurer,  cannot  be  joined  with  a  cause  of  action  in  his  favor  against  the 
sureties  on  his  official  bond,  for  wrongfully  converting  property  deeded  by 

(460) 


Art.  4)  PETITION  §  580 

brought  in  a  single  suit  in  equity,  may  be  regarded  as  one  cause  of 
action ;  but,  when  there  is  more  than  one  primary  right  to  be  en- 
forced, the  petition  is  demurrable.16 

The  question  whether  more  than  one  cause  of  action  is  stated 
sometimes  presents  difficulties,  but,  of  course,  a  petition  cannot  be 
objectionable  for  misjoinder,  if  only  one  cause  of  action  is  stated.17 

That  there  was  a  common  grantor  to  deeds  of  different  tracts  of 

him  in  trust  for  their  protection  as  sureties.  Riger  v.  Board  of  Com'rs  of 
Davis  County,  29  P.  595,  48  Kan.  389. 

Where  a  grantor  executes  two  separate  deeds  about  the  same  time,  one 
conveying  land  to  one]  person,  and  the  other  conveying  another  tract  to  a 
different  person,  and  the  grantor's  heirs  bring  proceedings  against  both  gran- 
tees to(  set  aside  the  deeds  and  partition  the  lands,  there  is  an  improper 
joinder  of  causes  of  action.  Griffith  v.  Griffith,  81  P.  178,  71  Kari.  547. 

In  an  action  for  partition  of  land  in  this  state,  amended  petition  making 
stranger  to  title  a  party,  alleging  that  he  claimed  title  and  wrongfully  ex- 
cluded plaintiff  from  possession  of  land  in  another  state,  is  demurrable  on 
ground  of  misjoinder  of  causes  of  action.  Caldwell  v.  Newton,  163  P.  163, 
99  Kan.  846. 

A  petition  in  quo  warranto  by  a  private  person,  in  the  name  of  the  state, 
averring  a  cause  of  action  against  the  mayor,  councilmen,  and  assessor  of 
the  city  to  disorganize  the  municipality,  and  one  against  the  county  clerk 
and  county  treasurer  to  enjoin  the  collection  of  a  tax  levied  against  plaintiff's 
property,  contains  two  causes  of  action,  which,  are  improperly  joined.  State 
v.  Shufford,  94  P.  137,  77  Kan.  263. 

An  owner  of  stock  in  a  corporation  secured  the  appointment  of  a  receiver, 
and  subsequently  he  and  such  receiver,  who  had  been  removed  and  another 
person  appointed  in  his  stead,  sued  the  company  and  others,  charging  that 
the  latter  had  conspired  together  to  defraud  the  company  of  its  property  and 
such  stockholder  of  his  interest,  and  prayed  that  certain  "-nlgments  be  set 
aside,  that  all  deeds  executed  by  the  substitute  receiver  a-d  the  other  de- 
fendants be  canceled,  and  that  certain  orders  be  vacated.  Held,  that  such 
petition  was  multifarious,  in  uniting  disconnected  causes  of  action  and  in 
joining  parties  without  a  common  interest.  Fry  v.  Rush,  65  P.  701,  63  Kan. 
429. 

A  cause  of  action  in  favor  of  plaintiff,  and  against  one  defendant,  cannot 
be  united  with  another  cause  of  action  in  favor  of  the  same  plaintiff  against 
another  defendant,  where  neither  defendant  is  interested  in  the  cause  of 
action  alleged  against  the  other.  Atchison,  T.  &  S.  F.  R.  Co.  v.  Board  Corn'rs 
Sumner  County,  33  P.  312,  51  Kan.  617. 

An  action;  by  an  executor  against  a  coexecutor,  asking  for  his  removal, 
cannot  be  joined  with  an  action  for  an  accounting  of  a  partnership  in  which 
the  estate  has  an  interest  with  another  person  not  connected  with  the  estate. 
Insley  v.  Shire,  39  P.  713,  54  Kan.  793,  45  Am.  St.  Rep.  308. 

16  Coody  v.  Coody,  136  P.  754,  39  Okl.  719,  L.  R,  A.  1915E,  465. 

IT  Only  one  cause  of  action  stated. — A  petition  in  replevin  by  the  mortgagor 
and  mortgagees  of  the  property,  although  setting  out  different  interests 

(461) 


§    580  PLEADINGS  (Ch.  11 

antagonistic  to  the  possession  of  defendant,  states  but  one  cause  of  action. 
First  Nat.  Bank  of  Russell  v.  Knoll,  52  P.  619,  7  Kan.  App.  352. 

A  petition  to  recover  for  breach  of  promise  of  marriage  and  seduction 
states  but  one  cause  of  action.  Bowes  v.  Sly,  152  P.  17,  96  Kan.  388. 

An  action  to  reform  a  written  contract  so  as  to  conform  to  the  contract 
actually  made,  and  to  enforce  said  contract  as  reformed,  constitutes  but  one 
cause  of  action.  German  Ins.  Co.  of  Freeport  v.  Davis,  51  P.  60,  6  Kan.  App. 
268. 

In  an  action  for  damages  for  an  unlawful  attachment,  the  petition  charg- 
ing that  the  attachment  was  wrongfully  and  maliciously  obtained,  states 
but  one  cause  of  action,  and  it  is  error  to  require  plaintiff  to  elect  whether 
he  will  proceed  for  the  wrongful  or  for  the  malicious  taking.  Schwartzberg 
v.  Central  Ave.  State  Bank,  115  P.  110,  84  Kan.  581. 

A  petition  alleging  a  verbal  agreement  to  sell  land  without  alleging  or  ask- 
ing damages  was  held  to  state  but  one  cause  of  action  under  which  per- 
formance or,  in  default  thereof,  damages  could  be  recovered.  Naugle  v. 
Naugle,  132  P.  164,  89  Kan.  622. 

A  petition,  alleging  the  loss  of  a  piano  valued  at  $400,  caused  by  failure  to 
have  it  insured  and  by  negligence  causing  fire,  in  which  it  was  destroyed,  and 
asking  judgment  for  $400,  stated  but  one  cause  of  action.  Stone  v.  Case,  124 
P.  960,  34  Okl.  5,  43  L.  R.  A.  (N.  S.)  1168. 

Appropriate  allegations  of  execution  of  a  guaranty  of  the  performance  of 
a  contract,  the  default  of  the  principal  obligor  and  of  guarantors  state  es- 
sentially but  one  cause  of  action  against  the  principal  and  guarantors,  and 
as  against  a  demurrer  there  is  no  misjoinder  of  causes  of  action.  Furst  v. 
Buss,  104  Kan.  245,  178  P.  411. 

In  an  action  to  quiet  title  involving  validity  of  a  conveyance  of  oil  and 
gas,  a  petition  alleging  abandonment,  and  also  that  the  instrument  was 
fraudulently  altered,  and  is  void  because  not  recorded  within  90  days  after 
execution,  and  not  listed  for  taxation,  states  but  one  cause  of  action.  Hor- 
ville  v.  Lehigh  Portland  Cement  Co-,  105  Kan.  305,  182  P.  548. 

A  petition,  in  an  action  to  set  aside  a  deed  as  procured  from  an  insane  per- 
son by  one  with  knowledge  of  his  insanity,  alleging  that  the  deed  was  void 
because  of  the  mental  weakness  of  the  grantor,  and  the  undue  influence  ex- 
ercised upon  him  while  in  that  condition,  and  asking  to  have  the  deed  ad- 
judged void,  states  but  a  single  cause  of  action.  Bethany  Hospital  Co.  v. 
Philippi,  107  P.  530,  82  Kan.  64,  30  L.  R.  A.  (N.  S-)  194. 

Where  the  executors  of  an  estate,  who  were  also  devisees  under  the  will, 
together  with  certain  other  devisees,  executed  a  mortgage  on  the  estate, 
and  the  mortgage  was  subsequently  twice  renewed  by  new  mortgages,  and 
an  extension  of  the  last  mortgage  was  granted,  an  action  against  the  mort- 
gagors personally  to  foreclose  their  interest  in  the  estate  was  not  subject  to 
demurrer  for  misjoinder  of  causes  of  action.  Shrigley  v.  Black,  53  P.  477, 
59  Kan.  487. 

A  petition*  on  a  note  executed  by  one  defendant,  which  alleges  the  deposit 
of  stock  as  collateral  by  another  defendant,  a  sale  and  application  of  the 
proceeds,  and  a  dispute  as  to  the  validity  of  the  sale,  and  asks  judgment  for 
the  balance  due  and  barring  defendants  from  any  claim  to  the  security, 
states  but  one  cause  of  action.  Hopkins  v.  Kuhn,  72  P.  270,  66  Kan.  619. 

Where  a  lessee  of  gas  lands  drills  wells  on  adjoining  land,  and  through 
them  drains  the  gas  from  the  leased  land,  the  fact  that  he  wrongfully  took 
the  gas  through  the  wells  on  the  adjoining  land  does  not  prevent  the  re- 

(462) 


Art.  4)  PETITION  §  580 

land  to  different  grantees  does  not  render  an  action  to  set  aside  both 
deeds  and  recover  the  land  a  single  cause  of  action.18 

A  petition  which  alleges  that  defendant  is  indebted  to  plaintiff 
"to  balance  due,  as  per  settlement,"  and  also  on  an  open,  itemized 
account,  states  two  separate  causes  of  action.19 

When  the  petition  states  three  separate  demands,  the  first  two 
on  promissory  notes  past  due,  and  the  third  on  an  account  not  due, 
there  is  a  misjoinder  of  actions.20 

An  action  to  recover  damages  against  a  number  of  defendants 
for  a  fraudulent  conspiracy  cannot  be  joined  with  an  action  to  ob- 
tain a  cancellation  of  a  certificate  of  deposit  owned  and  held  by  one 
of  said  defendants  alone,  even  though  such  certificate  was  obtained 
as  one  of  the  fruits  of  the  conspiracy.21 

An  action  upon  promissory  notes  cannot  be  properly  joined  with 
an  action  of  replevin.22 

Where  two  notes  were  given,  each  secured  by  a  separate  mort- 
gage, and  a  third  given  to  secure  any  deficiency  there  might  be,  it 
was  not  necessary,  or  even  proper,  to  include  such  third  mortgage 
in  actions  to  foreclose  the  first  two  mortgages.23 

An  action  for  rent  or  damages,  although  arising  out  of  the  same 
transaction,  cannot  be  joined  in  an  action  of  forcible  or  unlawful 
detainer.24 

There  is  a  misjoinder  in  an  alternative  writ  of  mandamus,  com- 
manding the  board  of  commissioners  to  canvass  the  petition  of  tax- 

covery  of  all  the  royalties  due  in  a  single  action.  Culbertson  v.  lola  Port1 
land  Cement  Co.,  125  P.  81,  87  Kan.  529,  Ann.  Cas.  1914A,  610. 

The  petition,  in  -an  action  against  a  physician  for  negligent  treatment  in 
an  obstetrical  case,  has  been  held  to  state  a  single  cause  of  action,  though  it 
alleged  negligence  of  defendant  both  before  and  after  the  birth  of  the  child. 
Yard  v.  Gibbons,  149  P.  422,  95  Kan.  802. 

18  Griffith  v.  Griffith,  81  P.  ITS,  71  Kan.  547. 

19  Eisenhouer  v.  Stein,  15  P.  167,  37  Kan.  281. 

20  Wurlitzer  v.  Suppe,  15  P.  863,  38  Kan.  31. 

21  Haskell  County  Bank  v.  Bank  of  Santa  Fg,  32  P.  624,  51  Kan.  39. 

22  Galbreath  v.  Mayo  (Okl.)   174  P.  517. 

23  Conklin  v.  Stackfleth,  69  P.  194,  65  Kan.  310. 

24  Hart  v.  Ferguson  (Okl.)  176  P.  396. 

An  action  of  forcible  entry  and  detainer,  brought  before  a  justice  of  the 
peace,  cannot  be  joined  with  a  claim  for  damages  growing  out  of  the  same 
transaction,  the  proceeding  being  a  summary  one.  Ow  v.  Wickham,  16  P.  335, 
38  Kan.  225. 

(463) 


§§  580-581  PLEADINGS  (Ch.  11 

payers  of  one  township  with  an  order  to  fix  the  date  of  election  for 
several  other  townships.25 

MOTION  TO   CONSOLIDATE 

(Caption  to  include  title  of  both  cases.) 

Comes  now  the  defendant  in  the  above  entitled  actions,  C.  D., 
and  respectfully  shows  to  the  court  that  both  of  said  actions  affect 
the  same  parties,  and  all  of  the  same  parties,  both  being  brought  by 
the  plaintiff,  A.  B.,  against  the  defendant,  C.  D.,  and  that  the  causes 
of  action  alleged  in  the  petitions  filed  in  said  actions  both  belong  to 
the  same  class  and  for  that  reason  might  be  joined  in  one  action. 

Wherefore  defendant  moves  the  court  that  the  plaintiff  be  re- 
quired to  show  cause,  if  any  there  be,  why  said  actions  and  causes 
of  action  should  not  be  consolidated  in  one  case,  and  that  if  no  cause 
be  shown,  that  said  actions  shall  be  consolidated. 

X.  Y.,  Attorney  for  Defendant. 

(Notice  of  the  above  motion  should  be  given  to  adverse  party.) 

MOTION  TO  REQUIRE  SEVERANCE 

(Caption.) 

Comes  now  the  defendant  E.  F.,  and  moves  the  court  to  grant 
this  defendant  a  severance  herein  and  a  separate  trial  of  the  issues 
between  plaintiff  and  this  defendant,  for  the  reason  that  this  is  an 
action  by  plaintiff,  A.  B.,  against  the  defendants,  C.  D.  and  E.  F., 
seeking  to  quiet  title  and  to  cancel  a  deed  given  by  A.  B.  to  C.  D. ; 
that  this  defendant,  E.  F.,  claims  to  be  an  innocent  purchaser  of  a 
portion  of  the  premises  covered  by  said  deed  from  the  defendant, 
C.  D. ;  and  that  in  the  event  the  issues  between  the  plaintiff  and  the 
defendant  C.  D.,  should  be  found  in  favor  of  the  defendant  C.  D.,  it 
would  not  be  necessary  to  try  the  issues  between  the  plaintiff  and 
this  defendant. 

X.  Y.,  Attorney  for  Defendant  E.  F. 

§  581.     Separately  stating  and  numbering 

"Where  the  petition  contains  more  than  one  cause  of  action,  each 
shall  be  separately  stated  and  numbered."  28 

25  State  v.  Commissioners  of  Reno  County,  16  P.  337,  38  Kan.  317. 

26  Rev.  Laws  1910,  §  4739. 

For  form  of  motion,  see  post,  §  699. 

(4G4) 


An.  4)  PETITION  §  581 

That  is,  each  of  several  causes  of  action  set  out  in  one  petition 
should  be  separately  stated  and  numbered,  and  proceed  upon  a  sin- 
gle definite  theory,  and  of  itself  present  a  complete  cause  of  action 
distinct  from  the  others.27 

Plaintiff  may  number  the  paragraphs  of  his  petition  though  it 
contains  but  a  single  count,  or  may  number  the  paragraphs  of  each 
count  where  it  contains  one  or  more  counts.28 

Where  he  has  two  or  more  distinct  and  separate  reasons  for  ob- 
taining the  relief  asked,  and  there  is  some  uncertainty  as  to  the 
grounds  of  recovery,  the  complaint  may  set  forth  a  single  claim,  or 
ask  for  the  same  relief  in  several  distinct  counts.29 

He  may,  in  separate  counts,  properly  state  his  case  in  different 
ways,  so  as  to  meet  each  of  the  various  aspects  in  which  the  evi- 
dence at  the  trial  may  possibly  leave  it.30 

27  First  Nat.  Bank  of  Tishomingo  v.  Ingle,  132  P.  895,  37  Okl.  276. 
Under  this  section,  each  of  several  causes  of  action  in  the  same  petition 

should  constitute  a  separate  count  or  paragraph,  separately  stated  and 
numbered,  proceeding  on  a  single  definite  theory,  and  presenting  a  complete 
cause  of  action.  Chupco  v.  Chapman  (Okl.)  160  P.  88. 

28  Burton  v.  Doyle,  48  Okl.  755,  150  P.  711. 

29  Carter  Oil   Co.   v.   Garr    (Okl.)    174  P.  498;    Harris   v.  Warren-Smith 
Hardware  Co.,  44  Okl.  477,  144  P.  1050. 

Where  the  chief  aim  of  a  petition  by  tenants  in  common  against  a  cotenant, 
is  partition,  allegations  asserting  right  to  accounting  and  to  rents  need  not 
be  separately  stated  and  numbered  unless  so  required  by  trial  court.  Cribb 
v.  Hudson,  160  P.  1019,  99  Kan.  65. 

In  an  action  against  a  milling  company  and  a  railroad  company  for  joint 
obstruction  of  a  river  to  plaintiff's  damage,  caused  by  separate  works  of 
the  defendants,  it  was  error  to  require  plaintiff  to  separately  state  and  num- 
ber his  causes  of  action  against  the  two  defendants,  since,  if  two  or  more  par- 
ties, acting  jointly,  injure  another,  they  are  jointly  and  severally  liable, 
and  the  injured  party  may  at  his  option  sue  one  or  all  of  those  contributing 
to  the  injury.  Arnold  v.  C.  Hoffman  &  Son  Mill  Co.,  86  Kan.  12,  119  P.  373. 

It  is  not  improper  to  join,  in  the  same  count,  an  allegation  that  defendant 
took  possession  of  personalty  belonging  to  plaintiff  and  converted  it  to  his 
own  use  with  an  allegation  that  he  entered  a  hotel  which  plaintiff  was  carry- 
ing on,  took  possession  of  the  building,  closed  same,  and  thereby  destroyed 
plaintiff's  business,  where  the  goods  alleged  to  have  been  converted  were  tak- 
en from  the 'building  at  the  same  time  and  the  entering  of  the  building  and 
the  taking  of  personalty  are  parts  of  the  same  transaction.  Wellington  v- 
Spencer,  132  P.  675,  37  Okl.  461,  46  L.  R.  A.  (N.  S.)  469. 

30  Edwards  v.  Hartshorn,  82  P.  520,  72  Kan.  19,  1  L.  R.  A.  (N.  S.)  1050. 
Plaintiffs  may  allege  in  one  count  a  right  to  recover  on  a  contract,  and  in 

another  for  money  had  and  received,  though  both  claims  are  founded  on  the 
same  transaction.  Van  Arsdale-Osborne  Brokerage  Co.  v.  Foster,  100  P.  480, 
79  Kan.  669. 

HON.PL.&  PBAC.— 30  (465) 


§§  582-583  PLEADINGS  (Ch.  11 

§  582.     Where  demurrer  sustained 

"When  a  demurrer  is  sustained,  on  the  ground  of  misjoinder  of 
several  causes  of  action,  the  court,  on  motion  of  the  plaintiff,  shall 
allow  him,  with  or  without  costs,  in  its  discretion,  to  file  several 
petitions,  each  including-  such  of  said  causes  of  action  as  might  have 
been  joined;  and  an  action  shall  be  docketed  for  each  of  said  peti- 
tions, and  the  same  shall  be  proceeded  in  without  further  serv- 
ice." 81 

Where  a  demurrer  containing  several  grounds  is  sustained  gen- 
erally, the  filing  of  separate  petitions  may  properly  be  permitted 
even  without  motion  therefor.32 

§  583.     Splitting 

A  single  cause  of  action  cannot  be  divided  into  several  claims, 
and  separate  actions  maintained  thereon.33 

An  action  for  a  tort  is  single  and  indivisible,  and  gives  rise  to  but 
one  liability.3* 

A  balance  due  on  an  account  running  for  more  than  two  years 
constitutes  only  one  cause  of  action.33 

All  the  separate  breaches  of  a  single  and  entire  contract  after 
such  breach  has  actually  occurred  constitute  only  one  cause  of  ac- 
tion, and  this  although  an  action  might  be  maintained  upon  each 


31  Rev.  Laws  1910,  §  4743. 

32  Weber  v.  Dillon,  7  Okl.  568,  54  P.  894,  appeal  dismissed  22  S.  Ct.  931,  46 
L.  Ed.  1262. 

33  Tootle  v.  Kent,  73  P.  310,  12  Okl.  674;   Akin  v.  Bonfils  (Okl.)  169  P.  899. 
A  creditor  who  has  a  single  cause  of  action  for  a  sum  of  money  cannot  by 

assignment  split  up  the  cause  of  action,  and  thereby  subject  the  debtor  to  a 
number  of  suits.    German  Fire  Ins.  Co.  v.  Bullene,  33  P.  467,  51  Kan.  764. 

In  an  action  by  a  plate  glass  insurer  who  had  paid  a  loss  from  explosion 
of  gas  which  defendant  allowed  to  escape,  held  that  a  demurrer  to  insurer's 
evidence  could  not  be  sustained  on  the  ground  that  there  was  a  splitting  of 
causes  of  action  because  insured  had  another  right  of  action  for  injuries  to 
floors,  etc.,  from  the  explosion  for  such  action  could  be  consolidated  or  the 
parties  brought  in.  Maryland  Casualty  Co.  v.  Cherryvale  Gas  Light  &  Pow- 
er Co.,  162  P.  313,  99  Kan.  563,  L.  R.  A.  1917C,  487. 

34  Kansas  City,  M.  &  O.  Ry.  Co.  v.  Shutt,  104  P.  61,  24  Okl.  96,  138  Am.  St. 
Rep.  870,  20  Ann.  Cas.  255. 

An  entire  claim  arising  from  a  single  wrong  cannot  be  divided  and  made  the 
subject  of  several  suits,  however  numerous  the  items  of  damages  may  be. 
Wichita  &  W.  R.  Co.  v.  Beebe,  18  P.  502,  39  Kan.  465. 

35  Tootle  v.  Wells,  18  P.  692,  39  Kan.  452. 

(466) 


Art.  4)  PETITION  §§  583-584 

of  such  breaches  as  it  occurred,  and  before  any  subsequent  breach 
occurred.36 

Injury  to  a  riparian  owner  from  a  municipal  sewer  system  pollut- 
ing a  water  course  so  as  to  constitute  a  nuisance,  there  being  no 
negligence  charged  in  its  construction  or  operation,  is  a  permanent  . 
injury  for  which  but  a  single  action  may  be  maintained.37 

An  action  to  enjoin  a  trespass  on  one  tract  in  plaintiff's  posses- 
sion, and  a  subsequent  action  for  possession  of  another  tract  in  de- 
fendant's possession  before  the  commencement  of  the  former  ac- 
tion, were  not  upon  a  single  cause  of  action  within  rule  against 
splitting  causes  of  action.38 

A  cause  of  action  for  construction  and  maintenance  of  railroad 
bridge  and  embankment,  where  the  negligent  condition  is  not  per- 
manent, arises  at  actual  injury,  and  successive  actions  may  be 
maintained  for  successive  injuries.39 

«t: 

§  584.     Consolidation 

"Whenever  two  or  more  actions  are  pending  in  the  same 
court,  which  might  have  been  joined,  the  defendant  may,  on  mo- 
tion and  notice  to  the  adverse  party,  require  him  to  show  cause 
why  the  same  shall  not  be  consolidated,  and  if  no  cause  be  shown, 
the  said  several  actions  shall  be  consolidated."  40 

Where  plaintiffs,  on  bringing  an  action  for  the  specific  perform- 
ance of  a  contract  for  the  exchange  of  property,  also  brought  replev- 
in for  personal  property  covered  by  the  contract,  the  court  may 
properly  consolidate  the  two  actions.41 

36  Whitaker  v.  Hawley,  1  P.  508,  30  Kan.  317. 

37  City  of  Mangum  v.  Sun  Set  Field  (Okl.)   174  P.  501. 

38  Akin  v.  Bonfils  (Okl.)  169  P.  899. 

In  suit  for  overflow  caused  by  railroad  bridge  and  embankment,  negligent 
condition  will  not  be  held  permanent  if  abatable  by  either  labor  or  money, 
consistent  with  rightful  use  and  maintenance  of  the  structure.  Pahlka  v. 
Chicago,  R.  I.  &  P.  Ry.  Co-,  62  Okl.  223,  161  P.  544. 

s9  Pahlka  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  62  Okl.  223,  161  P.  544. 

40  Rev.  Laws  1910,  §  4796. 

Where  two  mechanics'  liens  were  filed  upon  an  entire  tract,  and  other 
mechanics'  liens  were  filed  and  mortgages  were  executed  upon  specific  sub- 
divisions of  the  same  tract,  and  several  actions  were  commenced  in  the  dis- 
trict court  to  foreclose  the  mechanics'  liens  and  the  mortgages,  it  was  held, 
that  under  Civ.  Code,  §§83,  636,  it  was  proper  to  consolidate  them  for  the 
purpose  of  trial.  Van  Laer  v.  Kansas  Trip-Hammer  Brick  Works,  43  P.  1134, 
56  Kan.  545. 

"  Akins  v.  Holmes,  133  P.  849,  89  Kan.  812. 

(467) 


§§  584-585  PLEADINGS  (Ch.  11 

The  refusal  to  permit  the  consolidation  of  an  action  with  another 
action  in  which  another  party  is  impleaded  is  within  the  discre- 
tion of  the  trial  court.42 

Where  cases  cannot  be  consolidated  under  the  provisions  of  the 
statute,  several  cases  upon  the  same  general  subject  cannot  be  con- 
sidered and  determined  by  the  same  jury  at  the  same  time,  if  the 
parties  object.43 

Where  parties  consent  to  the  consolidation  of  two  separate  ac- 
tions and  agree  that  they  may  be  tried  together,  the  jurisdiction  of 
the  court  is  the  same  as  if  one  action  containing  all  the  issues  of 
the  consolidated  case  had  been  brought.4* 

§  585.     Order— Forms 

"The  order  for  consolidation  may  be  made  by  the  court,  or  by 
a  judge  thereof,  in  vacation."  45 

ORDER  OF  CONSOLIDATION 

(Caption,  to  include  titles  of  both  cases.) 

Now,  on  this day  of ,  19 — ,  this  cause  coming  on  to 

be  heard  on  the  motion  of  the  defendant  in  the  above  entitled  ac- 
tions, C.  D.,  that  said  actions  be  consolidated,  the  plaintiff  being 
present  by  his  attorney,  G.  H.,  and  the  defendant  being  present 
by  his  attorney,  X.  Y.,  and  the  court  having  heard  the  argument 
of  counsel,  and  being  fully  advised  in  the  premises,  and  it  appear- 
ing to  the  court  that  at  the  time  of  filing  said  motion,  the  defendant 
gave  notice  thereof  to  said  plaintiff,  and  notified  the  plaintiff  to 
show  cause  why  said  actions  should  not  be  consolidated,  if  any 
there  be,  and  no  cause  being  shown,  and  it  further  appearing  to  the 
court  that  the  causes  of  action  alleged  in  the  petitions  filed  in  said 
actions  both  belong  to  the  same  class  and  for  that  reason  might  be 
joined  in  one  action,  and  that  both  of  said  actions  effect  the  same 
parties,  and  all  of  the  same  parties : 

It  is  therefore  by  the  court  ordered  that  said  actions  be  and  the 
same  are  hereby  consolidated  and  merged  in  one  action,  and  that 

42  McCullough  v.  S.  J.  Hayde  Contracting  Co.,  109  P..  176,  82  Kan.  734. 

43  Ortman  v.  Union  Pac.  Ry.  Co.,  4  P.  858,  32  Kan.  419. 

44  Phillips  v.  Mitchell  (Okl.)  172  P.  85,  writ  of  error  dismissed  39  S.  Ct.  7, 
248  U.  S.  531,  63  L.  Ed.  405. 

*5  Rev.  Laws  1910,  §  4797. 

(468) 


Art.  4)  PETITION  §§  585-586 

said  action  shall  proceed  as  cause  No.  in  this  court.     It  is 

further  ordered  that  the  pleadings  be  reconstructed,  so  that  all  of 
the  plaintiff's  causes  of  action  shall  be  stated  in  one  petition,  and 
the  answer  of  defendant  present  all  the  issues  raised  in  the  orig- 
inal suits.  Itls  further  ordered  that  the  plaintiff  pay  the  costs  here- 
tofore accrued  in  cause  No. .  ,  Judge. 

•    ORDEJR  TO  SEPARATELY  STATE  AND  NUMBER 

(Caption.) 

Now,  on  this  -  —  day  of ,  19 — ,  this  cause  coming  on 

to  be  heard  on  the  motion  of  defendant  to  require  the  plaintiff  to 
separately  state  and  number  the  various  causes  of  action  alleged  in 
his  petition,  the  plaintiff  being  present  by  G.  H.,  his  attorney,  and 
the  defendant  being  present  by  X.  Y.,  his  attorney,  the  court, 
having  heard  the  argument  of  counsel  and  being  fully  advised  in 
the  premises,  finds  that  said  petition  alleges  more  than  one  cause  of 
action,  and  that  said  causes  are  not  separately  stated  and  numbered. 

It  is  therefore  by  the  court  ordered  that  said  plaintiff  be  and  he 
is  hereby  ordered  and  required  to  separately  state  and  number  the 
various  causes  of  action  alleged  in  his  petition,  and  that  said  plain- 
tiff be  given days  from  and  after  this  date  in  which  to  file 

his  amended  petition  herein,  to  which  ruling  of  the  court  the  plain- 
tiff duly  excepted,  which  exceptions  were  by  the  court  allowed. 

,  Judge. 

DIVISION  IV. — EXHIBITS  AND  PRAYER 

§  586.     Exhibits 

"If  the  action,  counterclaim  or  set-off  be  founded  on  account  or 
on  a  note,  bill,  or  other  written  instrument  as  evidence  of  indebt- 
edness, a  copy  thereof  must  be  attached  to  and  filed  with  the  plead- 
ing. If  not  so  attached  and  filed,  the  reason  thereof  must  be  stated 
in  the  pleading.  But  if  the  action,  counterclaim  or  set-off  be 
founded  on  a  series  of  written  instruments  executed  by  the  same 
person,  it  shall  be  sufficient  to  attach  and  file  a  copy  of  one  only, 
and  in  succeeding  causes  of  actions  or  defenses,  to  set  forth  in 
general  terms  descriptions  of  the  several  instruments  respective- 
ly." 46 

W  Rev.  Laws  1910,  §  4769. 

For  form  of  exhibits,  see  ante,  §  579. 

(469) 


§    586  PLEADINGS  (Cll.  11 

When  an  exhibit  is  made  a  part  of  the  petition,  reference  may 
be  had  to  the  exhibit  to  determine  whether  a  cause  of  action  has 
been  stated,  so  as  to  withstand  a  general  demurrer.47 

47  Long  v.  Shepard,  130  P.  131,  35  Okl.  489;  State  v.  School  Dist  No.  3,  8 
P.  208,  34  Kan.  237;  Grimes  v.  Cullison,  41  P.  355,  3  Okl.  268. 

In  suit  on  instrument  in  writing  for  payment  of  money,  where  copy  of 
instrument  is  attached  to  petition,  such  copy  should  be  considered  when  con- 
struing allegations  of  pleading  on  demurrer.  Davis  v.  Board  •  of  Com'rs  of 
Choctaw  County,  58  Okl.  77,  158  P.  294,  L.  R.  A.  1916F,  873. 

Where,  in  an  action  on  a  life  policy,  a  copy  of  the  policy  is  attached  to 
the  petition  and  made  a  part  thereof,  it  should  be  considered  when  construing 
the  petition  on  demurrer.  Friend  v.  Southern  States  Life  Ins.  Co.,  58  Okl.  448, 
160  P.  457,  L.  R.  A.  1917B,  208. 

Where  a  life  policy  provides  that  it  shall  be  incontestable  after  two  years 
from  date  of  issue,  such  provision  is  not  a  waiver,  but  a  condition,  and  is 
sufficiently  pleaded  where'  a  copy  of  the  policy  is  attached  to  the  petition 
as  an  exhibit.  Mutual  Life  Ins.  Co.  of  New  York  v.  Buford,  61  Okl.  158,  16O 
P.  928. 

Where  employe1,  after  injury,  delivered  to  his  employer  a  sworn  state- 
ment of  the  circumstances,  and  brought  an  action  for  damages,  and  attached 
the  sworn  statement  to  his  petition  as  an  exhibit  and  made  it  a  part  thereof, 
and  it  clearly  showed  that  plaintiff  was  guilty  of  contributory  negligence, 
the  pleading  was  insufficient  to  sustain  a  recovery.  Atchison,  T.  &  S.  F.  Ry. 
Co-  v.  Schroll,  92  P.  596,  76  Kan.  572. 

A  cross-petition,  alleging  an  agreement  between  decedent  and  wife  and  the 
cross-petitioner's  father  for  her  benefit,  "evidenced  by  a  written  instrument" 
attached  to  cross-petition,  showing  that  it  was  executed  only  by  the  father, 
was  properly  construed  as  stating  cause  of  action  founded  on  parol  agree- 
ment. Jacks  v.  Masterson,  160  P.  1002,  99  Kan.  89. 

Where  a  petition  for  a  writ  of  habeas  corpus  had  attached  to  it  a  parole 
granted  to  petitioner  and  accepted  by  him  and  a  revocation  thereof  which 
recited  that  the  Governor  was  within  the  state  when  the  parole  was  grant- 
ed by  the  Lieutenant  Governor,  the  petitioner  was  bound  by  such  recital. 
Ex  parte  Hawkins,  136  P.  991,  10  Okl.  Cr.  R.  396. 

In  an  action  on  a  supersedeas  bond,  a  petition  which  recites  the  execution 
of  the  bond,  the  action  in  which  it  was  given,  the  condition,  and  the  liability 
thence  arising,  and  then  refers  to  a  copy  of  the  bond  which  is  attached  to, 
and  made  a  part  of,  the  petition,  is  sufficient,  under  Comp.  Laws,  c.  80,  & 
118,  providing  that  a  copy  of  the  written  instrument  upon  which  an  action  is 
founded,  as  an  evidence  of  indebtedness,  must  be  attached  to,  and  filed  with, 
the  petition.  Walburn  v.  Chenaqlt,  23  P.  657,  43  Kan.  352. 

A  petition  alleged  the  negligent  adoption  by  the.  board  of  county  commis- 
sioners of  defective  plans  for  a  bridge,  in  consequence  of  which  plaintiffs 
husband,  while  working  under  the  bridge  while  it  was  building,  was  killed 
by  the  fall  of  the  structure.  The  verdict  of  the  coroner's  jury  was  attached 
to  the  petition,  in  which  the  cause  of  death  was  found  to  be  an  "accidental 
falling  of  a  stone-arch  bridge."  Held,  that  the  finding  of  the  coroner's  jury, 
made  a  part  of  the  petition,  did  not  narrow  the  alleged  cause  of  the  death  so 
as  to  confine  it  to  an  unforeseen  and  fortuitous  circumstance.  Board  of 
Com'rs  of  Cloud  County  v.  Vickers,  61  P.  391,  62  Kan.  25. 

(470)    ' 


Art.  4)  PETITION  §  586 

It  is  not  good  practice  to  make  a  mere  exhibit  a  part  of  the  peti- 
tion, the  better  mode  being  to  make  a  direct  statement  of  the 
facts.48 

That  is,  the  substance  of  the  terms  of  a  written  instrument  sued 
on  should  be  set  out  in  the  petition,  and  not  merely  attached  by 
copy.40 

In  an  action  on  a  note,  the  original  note,  or  a  copy  thereof,  with 
the  indorsements,  if  any,  must  be  filed  as  a  part  of  the  complaint.50 
But  a  complaint  which  seeks  only  to  foreclose  a  mortgage  and  not 
judgment  on  the  note  secured  need  not  exhibit  it.51 

In  an  action  on  a  note  by  an  indorsee,  where  the  copy  of  the  note 
set  out  in  the  complaint  does  not  show  the  indorsement  by  the 
payee  to  plaintiff,  the  complaint  is  bad  on  demurrer,  though  such  in- 
dorsement is  alleged.52 

A  judgment  is  such  an  instrument  as  is  required  to  be  set  out  by 
copy.53 

A  written  demand  for  the  return  of  usury  is  not  a  "written  in- 
strument as  evidence  of  indebtedness."  64 

A  copy  of  a  bill  of  lading  is  not  required  to  be  attached  to  the 
petition  in  an  action  for  injuries  to  a  shipment  of  live  stock.55 

It  is  not  error  to  strike  out  exhibits  to  an  answer  containing  al- 
legations permitting  the  introduction  of  evidence  in  support  of  the 
proposition  contained  in.,  the  exhibit,  which  are  merely  cumulative, 
and  the  striking  out  of  which  does  not  deprive  the  pleader  of  any 
substantial  right,  or  prevent  him  from  making  any  proper  defense 
which  he  may  have.66 

The  allegations  of  a  petition  must  be  construed  in  connection 
with  the  exhibits  attached  and  referred  to  therein.57 

Letters  attached  to  petition  in  action  for  specific  performance 

48  Long  v.  Shepard,  130  P.  131,  35  Okl.  489- 

40  Minnetonka  Oil  Co.  v.  Cleveland  Vitrified  Brick  Co.,  48  Okl.  745,  150  P. 
712. 

50  First  Nat.  Bank  v.  Jones,  37  P.  824,  2  Okl.  353. 

51  Tracey  v.  Crepin,  138  P.  142,  40  Okl.  297. 

62  First  Nat.  Bank  v.  Jones,  37  P.  824,  2  Okl.  353. 

53  Oberlin  Loan,  Trust  &  Banking  Co.  v.  Kitchen,  57  P.  494,  8  Kan.  App.  445. 

54  Texmo  Cotton  Exch.  Bank  v.  Listen,  61  Okl.  33,  160  P.  82. 

53  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Harrington.  44  Okl.  41,  143  P.  325. 

56  Deming  Inv.  Co.  v.  McLaughlin,  30  Okl.  20,  118  P.  380. 

57  Southern  Surety  Co.  v.  Chambers  (Okl.)   180  P.  711. 

In  an  action  on  a  contract,  an  exhibit  was  attached  to  the  petition,  show- 

(471) 


§§  586-587  PLEADINGS  (Ch.  11 

of  a  contract  for  conveyance  of  land  showing  the  alleged  contract, 
if  in  conflict  with  petition,  must  control  in  determining  whether  an 
enforceable  contract  was  made.58 

A  copy  of  the  mortgage  involved  attached  to  and  made  a  part 
of  the  petition  in  a  foreclosure  suit  controls  all  general  recitals 
of  the  petition  at  variance  with  the  copy,  and  if  the  land  affected 
be  misdescribed  in  the  petition  a  correct  description  in  the  copy 
governs.59 

An  answer  alleging  that  a  contract  was  "made  and  entered  into," 
and  having  attached  a  copy  thereof,  sufficiently  alleges  that  it  was 
"executed,"  so  as  to  require  a  verified  denial.60 

§  587.     Prayer 

Prayer  for  relief  is  not  conclusive  as  to  character  of  petition, 
nor  as  to  relief  that  plaintiffs  may  be  allowed.61  But  it  may  be  con- 
sidered in  determining  the  relief  actually  sought  by  the  pleader.62 

In  actions  for  the  specific  performance  of  a  contract,  it  is  the 
well-established  practice  to  ask,  in  the  alternative,  for  money  dam- 
ages if  the  court  finds  it  inequitable  or  impossible  to  compel  spe- 
cific performance.63 

wig  that  some  of  the  items  were  furnished  outside  of  the  contract.  No  ob- 
jection was  made  before  trial.  Held  that,  since  the  defect  could  have  been 
remedied  by  amendment,  there  was  no  objectionable  variance  in  rendering 
judgment  on  the  contract,  and  also  on  a  quantum  meruit.  El  Reno  Electric 
Light  &  Telephone  Co.  v.  Jennison,  50  P.  144,  5  Okl.  759. 
58Bowker  v.  Lin  ton  (Okl.)  172  P.  442. 

59  Sharp  v.  McColm,  101  P.  659,  79  Kan.  772. 

60  Limerick  v.  Barrett,  43  P.  853,  3  Kan.  App.  573. 

61  Myler  v.  Fidelity  Mut.  Life  Ins.  Co.  of  Philadelphia,  64  Okl.  293,  167  P. 
601. 

Where  petition  states  facts  constituting  a  cause  of  action  for  maintaining 
a  public  nuisance,  held  immaterial  that  plaintiff  did  not  demand  the  precise 
relief  to  which  he  was  entitled,  or  the  true  rule  of  damages.  Colbert  v.  City 
of  Ardmore,  122  P.  508,  31  Okl.  537. 

The  prayer  of  a  petition  forms  no  part  of  it,  and  relief  may  be  granted  in 
accordance  with  the  facts  stated  in  the  petition  rather  than  pursuant  to  the 
prayer.  Smith  v.  Smith,  73  P.  56,  67  Kan.  841. 

62  Rochester  v.  Wells  Fargo  &  Co.  .Express,  123  P.  729,  87  Kan.  164,  40  L. 
R.  A.  (N.  S.)  1095. 

63  Brush  v.  Boyer,  104  Kan.  168.  178  P.  445. 
For  form  of  prayers  in  petitions,  see  ante,  §  579. 

(472) 


Art.  5)  ANSWER 


ARTICLE  V 

ANSWER 

DIVISION  I. — ANSWER  IN  GENERAL 
Sections 

588.  Contents — Forms. 

589.  Construction. 

590.  Joinder. 

591.  Matters  necessary  to  plead. 

592.  Affirmative   defenses — Forms. 

593.  Fraud — Form. 

594.  Limitations — Form. 

595.  Pleading  defenses  in  action  on  note. 

596.  Pleading  attachment  or  garnishment. 

597.  Defenses  in  replevin. 

598.  Adverse   possession. 

599.  Inconsistent  defenses. 
600-  Negative  pregnant. 

601.  Defense  in  libel  and  slander. 

602.  Supplemental  answer. 

DIVISION  II.— GENERAL  DENIAL 

603.  Effect  and  sufficiency. 

604.  Disclaimer — Form. 

605.  Must  be  entered  for  whom. 

606.  Effect — By   guardian    ad  litem. 

DIVISION  III. — VERIFIED  DENIAL 

607.  Verification  in  general. 

608.  Who  may  verify. 

609.  How  made— On  belief. 

610.  Execution    of    written    instruments — Indorsement. 
611-    Appointment  or  authority. 

612.  Account. 

613.  Corporation  and  partnership. 

614.  Waiver. 

615.  Forms. 

DIVISION  IV.— COUNTERCLAIM  AND  SET-OFF 

616.  Counterclaim — Nature — Right   to  interpose — Set-off — Limitations. 

617.  Set-off— Right  to  interpose. 

618.  Defined  and  distinguished — Statute  applied. 

619.  Subsisting  right- 
620-  Equity. 

621.  Cross-bill  or  cross-petition. 

622.  Landlord  and  tenant. 

623.  Action  against  United  States. 

624.  Cross-demands — Deprivation. 

625.  Assignments. 

(473) 


§   588  PLEADINGS  (Ch.  11 

Sections 

626.  Definition. 

627.  Parties  and  mutuality. 

628-  New  party — Counterclaim. 

629.  New  party— Set-off. 

630.  Form  and  requisites. 

631.  Notice. 

632.  Waiver. 

633.  Withdrawal. 

634.  Neglect  to  claim— Cost 

635.  Forms. 

DIVISION  V.— UNAUTHOBIZED  PLEAS 

636.  Plea   in   abatement. 

637.  Plea  in  bar. 

DIVISION  I. — ANSWER  IN  GENERAL 

§  588.     Contents — Forms 

"The  answer  shall  contain: 

"First.  A  general  or  specific  denial  of  each  material  allegation 
of  the  petition  controverted  by  the  defendant. 

"Second.  A  statement  of  any  new  matter  constituting  a  de- 
fense, counterclaim  or  set-off,  or  a  right  to  relief  concerning  the 
subject  of  the  action,  in  ordinary  and  concise  language,  and  with- 
out repetition. 

"Third.  When  relief  is  sought,  the  nature  of  the  relief  to  which 
the  defendant  supposes  himself  entitled.  The  defendant  may  set 
forth,  in  his  answer,  as  many  grounds  of  defense,  counterclaim, 
set-off,  and  for  relief,  as  he  may  have,  whether  they  be  such  as  have 
been  heretofore  denominated  legal,  or  equitable,  or  both.  Each 
must  be  separately  stated  and  numbered,  and  they  must  refer,  in 
an  intelligible  manner,  to  the  causes  of  action  which  they  are  in- 
tended to  answer."  6* 

* 

e*  Rev.  Laws  1910,  §  4745. 

The  defendant  may  plead  all  grounds  of  defense,  whether  legal  or  equitable, 
and  need  not  elect  between  them.  Garfield  Oil  Co.  v.  Champlin,  78  Okl.  91,  189 
P.  514. 

Where  there  was  no  agreement  that  the  award  should  be  made  a  rule  of 
court,  the  objection  that  the  award  exceeded  the  power  of  the  arbitrators,  or 
omitted  to  decide  a  matter  submitted,  could  be  made  by  answer  in  an  action 
on  the  award.  Clark  v.  Goit,  41  P.  214,  1  Kan.  App.  345. 

Sufficiency  of  answers. — An  answer  setting  up  a  bar  to  a  former  action 
showing  that  the  suit  was  for  the  same  cause  of  action  between  the  same  par- 
ties, and  that  judgment  was  rendered  on  the  merits  by  the  court  having  ju- 

(474) 


Art.  5)  ANSWER  §  588 

ANSWER  IN  SUIT  TO  CANCEL  CONVEYANCES 

(Caption.) 

Come  now  the  said  defendants,  J.  D.,  R.  H.,  and  F.  E.,  by , 

their  attorneys,  and  for  their  joint  and  several  answers  to  the  peti- 
tion of  the  plaintiffs,  as  amended  by  interlineation  and  insertions, 
allege  and  state: 

risdictlon  of  the  parties  and  the  subject-matter,  and  that  the  judgment  had 
not  been  appealed  from,  is  good.  Cowan  v.  Maxwell,  111  P.  388,  27  Okl.  87. 

Answer  in  an  action  against  an  indorser  held  to  present  a  good  defense, 
where  usury  was  pleaded.  Ladd  v.  Ardmore  State  Bank,  143  P.  170,  43  Okl. 
502. 

In  an  action  for  the  price  of  trees,  an  answer  alleging  that  plaintiff's  agent 
informed  defendant  that  it  would  take  5,000  trees  to  plant  defendant's  tract, 
that  thereupon  he  signed  an  order  for  such  number,  and  that  a  much  smaller 
number  was  required  than  estimated,  stated  a  good  defense.  Mt.  Hope  Nur- 
series Co.  v.  Jackson,  128  P.  250,  36  Okl.  273,  45  L.  R.  A.  (N.  S.)  243. 

Allegation  in  answer  that  if  defendant  was  liable  for  plaintiff's  injuries,  his 
right  and  defendant's  liability  were  regulated  by  federal  Employers'  Liability 
Act  (U.  S.  Comp.  St.  §§  8657-8665),  stated  proposition  of  law  and  did  not  con- 
trovert allegations  of  petition  nor  raise  any  issue.  Wichita  Falls  &  N.  W.  By. 
€o.  v.  Puckett,  53  Okl.  463,  157  P.  112. 

Where  defendant  in  a  suit  by  a  foreign  corporation  answers  to  the  merits, 
he  admits  the  capacity  of  plaintiff  to  sue,  and  where  defendant  filed  a  supple- 
mental answer  alleging  that  plaintiff  had  not  complied  with  the  Statutes  of 
Oklahoma,  a  demurrer  to  such  supplemental  answer  was  properly  sustained. 
Kibby  v.  Cubie,  Heimann  &  Co.,  137  P.  352,  41  Okl.  116. 

Where  defendant  in  a  suit  on  a  foreign  judgment  answered  that  he  had  not 
been  served  with  summons,  and  attached  a  copy  of  the  judgment  showing  want 
of  service  and  that  he  had  not  appeared,  the  answer  was  not  demurrable. 
Rogers  v.  Presnall,  124  P.  37,  32  Okl.  834. 

Ejectment. — Where  plaintiff  in  ejectment  alleged  that  he  owned  the  land 
and  was  entitled  to  possession  thereof,  and  that  defendant  was  unlawfully 
keeping  him  out  of  possession,  an  answer  denying  generally  the  averments  on 
the  petition  was  sufficient.  Wiggins  v.  Powell,  152  P.  765,  96  Kan.  478. 

Equity. — In  an  action  for  the  reformation  of  a  deed  of  a  deceased  minor 
Cherokee  freedman,  neither  an  allegation  that  the  allotment  was  generally 
understood  to  be*  a  new  acquisition  and  would  descend  as  such,  nor  an  allega- 
tion that  the  grantor's  interest  in  the  decedent's  property  was  considered  and 
recognized  by  all  parties  concerned  as  a  life  estate  only,  constituted  a  suffi- 
cient plea  of  mistake  in  the  execution  of  the  deed.  Thraves  v.  Greenlees,  142 
P.  1021,  42  Okl.  764. 

In  an  action  to  enforce  specific  performance  of  a  contract  to  exchange  real- 
ty, held,  that  an  indefinite  plea  supported  by  no  evidence  that  plaintiff's  title 
was  incumbered  so  that  the  title  was  unmerchantable  presented  no  defense. 
Spaeth  v.  Kouns,  148  P.  651,  95  Kan.  320,  L.  R.  A.  1915E,  271. 

Answer  in  suit  to  foreclose  mortgage  setting  up  extension  of  time  of  pay- 
ment held  not  subject  to  demurrer.  Roe  v.  Fleming,  122  P.  496,  32  Okl.  259. 

An  answer,  alleging  that  a  grantor  intended  to  convey,  and  the  grantee  to 
take,  only  a  life  estate  under  a  deed  purporting  to  convey  in  fee  simple,  held 

(475) 


§    588  PLEADINGS  (Ch.  11 

That  said  defendants  admit  that  the  said  plaintiffs  are  husband 
and  wife  and  that  they  were  such  at  all  the  times  mentioned  in 
said  petition  and  that  they  reside  in —  county,  Oklahoma. 

That  said  defendants  admit  that  the  said  plaintiff  A.  M.  is  a 
member  of  the  Creek  Nation,  and  allege  that  he  is  duly  enrolled 
on  the  official  Indian  rolls  as  an  adult  Creek  Indian  of  one-eighth 

to  state  no  defense  to  an  action  by  the  grantee  or  his  assigns  to  quiet  title 
against  a  defendant  claiming  title  to  the  remainder,  where  it  did  not  allege 
fraud  or  mistake  in  the  execution  of  the  deed.  Bell  v.  Bancroft,  55  Okl.  306, 
155  P.  594. 

Bonds. — Answer  pleading  defense  to  action  on  redelivery  bond  in  attach- 
ment held  sufficient  against  motion  for  judgment.  Fritts  v.  Reidel,  165  P. 
671,  101  Kan.  68. 

Where  by  a  bond  given  the  sheriff  in  attachment  it  appeared  that 
the  obligor  sought  to  save  such  officer  as  against  persons  claiming  the  prop- 
erty seized,  and  in  an  action  thereon  it  was  alleged  that  in  a  suit  against 
the  sheriff  judgment  was  rendered  against  him,  which  he  has  been  compelled 
to  pay,  the  petition  will  be  sustained  as  against  a  general  demurrer.  Tuck- 
er v.  Smith,  68  P.  40,  65  Kan.  551. 

In  an  action  to  recover  upon  an  undertaking  given  to  secure  the  discharge 
of  attached  property  and  the  restoration  of  such  property  to  the  defendant, 
the  condition  of  which  is  "that  the  defendant  will  perform  the  judgment  of 
the  court  in  said  action,"  it  is  a  sufficient  allegation  of  a  breach  of  the  condi- 
tions of  the  undertaking  to  aver  that  the  plaintiff  obtained  a  judgment  against 
the  defendant  in  such  action,  what  the  amount  of  such  judgment  was,  and 
that  said  judgment  was  unpaid,  in  whole  or  in  part.  Winton  v.  Myers,  58  P. 
634,  8  Okl.  421. 

In  an  action  on  a  forthcoming  bond  an  unverified  general  denial  admits  the 
execution  of  the  bond,  but  puts  in  issue  an  allegation  in  the  petition  that  the 
property  was  delivered  to  the  defendant  when  the  bond  was  approved,  and 
an  allegation  that  defendant  had  removed  the  attached  property  from  the  ter- 
ritory and  failed  to  surrender  it  to  satisfy  the  judgment  pursuant  to  the  terms 
of  the  bond.  Dunn  v.  Claunch,  78  P.  388,  15  Okl.  27. 

In  an  action  on  an  undertaking  given  in  an  attachment  case,  under  St.  1893, 
§  4107,  to  secure  the  release  of  the  attached  property,  it  is  necessary  to  aver 
and  show  by  the  evidence  that  the  attached  property  was  restored  to  the  de- 
fendant, or  there  can  be  no-recovery.  Drovers'  Live  Stock  Commission  Co.  v. 
Custer  County  State  Bank,  91  P.  850,  19  Okl.  302.  . 

Insurance. — In  an  action  on  a  mutual  benefit  certificate,  an  answer  alleging 
generally  that  assured  complied  with  all  requirements  to  effect  a  change  of 
beneficiary  held  to  state  a  defense  as  against  a  general  demurrer.  Janeway 
v.  Norton,  61  Okl.  185,  160  P.  908. 

Answer,  in  an  action  on  a  fire  policy  authorizing  cancellation  for  the  taking 
out  of  additional  insurance  without  permission,  held  demurrable.  St.  Paul 
Fire  &  Marine  Co.  v.  Bragg,  137  P.  715,  41  Okl.  146. 

A  breach  of  a  provision  of  a  fire  policy  that  the  insured  will  keep  a  faithful 
record  of  all  cotton  received  and  taken  away,  being  defensive  matter,  is  prop- 
erly set  up  by  answer  and  issue  joined  thereon  by  reply.  Scottish  Union  & 
National  Ins.  Co.  v.  Moore  Mill  &  Gin  Co.,  143  P.  12,  43  Okl.  370. 


Art.  5)  ANSWER  §  588 


Indian  blood,  a.nd  they  admit  that  the  lands  described  in  said 
petition  were  duly  allotted  and  conveyed  to  him  as  a  member  of 
said  Creek  Nation,  but  they  further  allege  and  state  that  the  re- 
strictions upon  the  alienation  of  all  of  said  lands  expired  or  were 
long  before  the  transactions  set  out  in  said  petition. 

The  said  defendants  admit  that  all  the  defendants  in  the  above 
entitled  action  are  residents  of  -  county,  Oklahoma. 

The  said  defendants  admit  that,  on  or  about  July  2,  1914,  the 
said  defendant  J.  D.  did  secure  from  the  said  plaintiffs  a  six 
months'  option  to  buy  an  undivided  one-half  (%)  interest  in  the 
said  lands  described  in  the  said  petition  at  a  price  of  $30,000,  and 
that  Exhibit  A  to  said  petition  is  a  true  and  correct  copy  of  said 
option  contract;  but  said  defendants  allege  and  state  that  the  said 
lands  were  chiefly  valuable  for  oil  and  gas,  and  that  it  is  provided  in 
said  option  contract  that  any  conveyance  of  said  lands  that  might 
be  made  thereunder  should  be  subject  to  a  prior  oil  and  gas  lease 
covering  said  lands  and  then  owned  by  C.  B.  S. 

The  said  defendants  admit  that,  on  or  about  November  7,  1914, 
the  said  defendant  J.  D.  did  procure  from  the  said  plaintiffs  a  war- 
ranty deed  conveying  to  the  said  defendant  J.  D.  an  undivided 
one-fourth  (y±)  interest  in  and  to  the  lands  describe'd  in  said  peti- 
tion, and  they  admit  that  Exhibit  B  to  said  petition  is  a  true  and 
correct  copy  of  said  deed,  and  that  Exhibit  C  to  said  petition  is  a 
true  copy  of  said  contract  executed  by  the  said  defendant  J.  D. 
to  the  said  plaintiffs,  in  connection  with  said  deed  ;  but  said  defend- 
ants allege  and  state  that,  at  the  time  of  the  execution  of  said  war- 
ranty deed,  C.  B.  S.  held  a  valid,  legal,  and  subsisting  oil  and  gas 
lease  upon  said  lands,  which  lease  was,  in  said  deed,  expressly  ex- 
cepted  from  the  covenant  of  warranty  therein,  and  that  said  lands 
were  chiefly  valuable  for  oil  and  gas. 

The  said  defendants  deny  that  the  said  defendant  J.  D.  has  drawn 
all  the  royalty  from  the  lands  described  in  said  contract  of  No- 
vember 7,  1914,  and  said  contract  of  July  2,  1914,  and  they  allege 
and  state  the  truth  to  be  that,  up  to  date  of  March  28,  1916,  the 
said  J.  D.  drew  only  one-eighth  (%)  of  said  royalties,  and  that,  up 
to  said  date,  the  full  one-eighth  (%)  of  said  royalties  was  paid  to 
the  said  plaintiffs,  in  accordance  with  his  said  contract  with  them, 
a  copy  of  which  is  attached  to  the  said  petition  herein  as  Exhibit  C, 
and  that,  after  said  date  of  March  28,  1916,  the  said  defendant,  J. 
D.,  at  the  special  request  of  said  plaintiff  A.  M.  drew  the  full  one- 

(477) 


588  PLEADINGS  (Ch.  11 


fourth  (14)  part  of  said  royalties,  and,  in  accordance  with  his  said 
contract,  promptly  and  regularly  paid  over  to  the  said  plaintiffs 
one-half  of  the  said  royalties  so  received  by  the  said  J.  D.  ;  and 
the  said  defendants  admit  that,  up  to  the  bringing  of  the  action 
herein,  the  said  J.  D.  had  received  and  retained  for  himself  and 
these  answering  defendants,  of  said  royalties,  about  the  sum  of 
$7,300,  and  they  state  that  a  like  amount  of  said  royalties  had  been 
paid  to  and  received  by  the  said  plaintiffs. 

The  said  defendants  admit  that  the  said  defendant  J.  D.  duly 
conveyed  to  the  said  defendants  R.  H.  and  F.  E.  an  undivided 
one-sixteenth  (V16)  interest  in  and  to  the  lands  described  in  said 
petition,  by  warranty  deed,  a  true  and  correct  copy  of  which  is 
attached  to  said  petition  as  Exhibit  F. 

The  said  defendants  deny  each  and  every  allegation  contained  in 
said  petition,  except  the  allegations  thereof  which  they  have  herein 
above  expressly  admitted,  and  they  further  especially  deny  that,  in 
any  of  the  transactions  set  out  in  said  petition,  the  said  P.  C.  or 
the  said  defendant  F.  S.  ever  acted  as  the  agent  of  the  said  defend- 
ant J.  D.,  or  as  the  agent  of  any  of  these  answering  defendants. 
They  deny  that  the  said  defendant  J.  D.,  or  any  of  these  answering 
defendants,  ever  entered  into  any  conspiracy  with  the  said  F.  S. 
or  P.  C.,  or  with  any  other  person  or  persons,  to  procure  the  execu- 
tion of  the  contracts  and  warranty  deed  mentioned  above.  They 
expressly  deny  that  any  of  said  instruments  were  procured  with- 
out consideration  or  through  fraud,  or  by  the  exercise  of  any  un- 
due influence  upon  the  said  plaintiffs  or  upon  either  of  them  ;  and 
they  further  especially  deny  'that,  by  reason  of  the  long  use  of 
intoxicating  liquors  or  for  any  other  reason,  the  mind  of  the  said 
plaintiff  A.  M.  was  so  weakened  that  he  did  not  fully  compre- 
hend the  effect  of  his  said  contracts  with  and  deed  to  the  said  de- 
fendant J.  D.;  but,  on  the  contrary,  the  said  defendants  allege  and 
state  the  truth  to  be  that  the  said  plaintiff  A.  M.  clearly  com- 
prehended and  understood  the  full  import  and  force  and  effect 
of  said  contracts  and  deed  at  the  dates  of  their  execution,  and 
has  at  all  times,  since  the  execution  thereof,  fully  comprehended 
and  understood  the  full  import  and  force  and  effect  of  said  in- 
struments. 

For  their  further  answer  to  said  petition,  the  said  defendants 
deny  that  the  said  plaintiff,  A.  M.,  or  that  either  of  said  plaintiffs, 

(478) 


Art.  5)  ANSWER  §  588 

has  only  recently  discovered  the  facts  attending  the  execution  and 
delivery  to  the  said  defendant  J.  D.  of  the  said  option  contract  and 
the  said  warranty  deed,  and  of  the  said  contract  executed  in  con- 
nection with  said  deed,  and  true  and  correct  copies  of  which  are 
attached  to  the  petition  of  said  plaintiffs  as  Exhibits  A,  B  and  C ; 
but  said  defendants  state  the  truth  to  be  that  the  said  plaintiff  A. 
M.  and  his  said  coplaintiff  knew  and  fully  understood  all  the  facts 
and  circumstances  in  relation  thereto  at  the  time  of  the  execution 
of  same,  and  have  ever  since  fully  known  and  understood  all  said 
facts  and  circumstances;  and  the  said  defendants  allege  and  state 
that  said  plaintiffs  have  been  guilty  of  such  laches  that  they  are 
no  longer  entitled  to  maintain  the  action  herein,  and  the  said  de- 
fendants expressly  plead  that  the  said  action  herein  of  the  said 
plaintiffs  is  barred  by  their  said  laches. 

These  answering  defendants,  and  each  of  them,  specifically  deny 
every  allegation  of  new  matter  contained  in  the  plaintiffs'  petition, 
as  amended  by  interlineation  and  insertion  in  accordance  with  the 
order  of  this  court  granting  leave  to  the  plaintiffs  to  so  amend, 
made  and  entered  on  the  4th  day  of  September,  1917,  and  further 
specifically  deny  any  conspiracy  between  these  defendants,  or  any 
of  them,  or  any  fraudulent  transactions  or  dealings  of  any  kind  on 
their  part  with  the  said  plaintiffs,  or  either  of  them. 

Premises  considered,  the  said  defendants  pray  judgment  that 
they  be  hence  dismissed  with  their  costs,  and  that  they  may  have 

all  other  and  further  relief.  , 

By ,  Attorneys. 

State  of  Oklahoma,! 

I    gs   • 

County  of ,J 

J.  D.,  of  lawful  age,  being  first  duly  sworn,  upon  oath  states: 

That  he  is  one  of  the  defendants  named  in  the  above  and  fore- 
going answer;  that  he  has  read  said  answer  and  knows  the  con- 
tents thereof ;  and  that  the  statements  and  matters  therein  set  out 
are  true  and  correct,  except  such  matters  and  statements  as  are 
made  on  information  and  belief,  and  those  he  believes  to  be  true. 

J.  D. 

Subscribed  and  sworn  to  before  me  this  day  of  , 

19—. 

(Seal.)  ,  Notary  Public. 

My  commission  expires  January  5,  1920. 

(479) 


§    588  PLEADINGS  (Ql.  11 

ANSWER  IN  DAMAGE  SUIT — PERSONAL  INJURY 

(Caption.) 

Separate  Answer  of  Defendant 

Comes  now  the  defendant  C.  D.,  and  for  his  separate  answer  to 
plaintiff's  petition  filed  herein  says: 

1.  The   said   defendant   denies   generally   and   specifically   each, 
all,  and  every  of  the  allegations  in  said  petition  contained,  except  such 
as  are  hereinafter  specifically  admitted. 

2.  Further  answering,  and  for  further  defense,  the  said  defend- 
ant alleges  that,  if  any  injuries  were  sustained  by  the  said  F.  B., 
they  were  due  to  his  own  negligence  and  want  of  care,  in  this,  to 
wit: 

That  on  or  about ,  19 — ,  while  his  codefendant  was  driving 

and  operating  her  automobile  in  a  proper  and  careful  manner  west- 
ward on street,  between street  and street,  east 

of  the  alley,  in  -  ,  Oklahoma,  the  said  F.  B.,  riding  a  bicycle, 

emerged  from  a  point  between  two  automobiles  parked  on  the  north 

side  of street  in  front  of  the  X.  Y.  Apartments ;   that  as  the 

said  automobile  approached  the  said  point  the  said  F.  B.  suddenly, 
and  without  giving  notice  or  warning  of  his  approach,  and  with- 
out keeping  a  lookout  for  any  person  or  vehicle  which  might  be 
approaching,  negligently  and  carelessly  rode  his  bicyclfe  from  the 
north  side  of street  from  the  point  aforesaid,  in  a  southeast- 
erly direction,  to  a  point  directly  in  front  of  and  against  the  said 
automobile;  that  the  said  negligent  and  careless  act  of  the  said 
F.  B.  was  the  proximate  and  contributing  cause  of  the  alleged  oc- 
currence, accident,  or  injury,  without  which  act  the  same  would 
not  have  occurred. 

3.  This  defendant  further  alleges  that  the  acts  of  the  said  F.  B. 
in  riding  his  bicycle  as  aforesaid  were  in  violation  of  the  follow- 
ing ordinances  of  the  city  of ,  which  were  in  force  on  -    , 

19 — ,  to  wit:    (Here  set  forth  ordinances  violated.) 

The  defendant,  therefore,  prays  judgment  that  he  be  dismissed, 
and  for  his  costs  and  all  other  proper  relief. 

,  Attorneys  for  Defendant  C.  D. 

(480) 


Art.  5)  ANSWER  §§  589-591 

§  589.     Construction 

The  answer  should  be  construed  liberally,  with  a  view  to  sub- 
stantial justice.65 

§  590.     Joinder 

A  defendant  may  join  in  his  answer  as  many  grounds  of  defense, 
counterclaim,  or  set-off  as  he  may  have,  whether  they  are  such  as 
have  heretofore  been  denominated  legal  or  equitable  or  both,  when 
they  arise  out  of  the  contract  or  transaction  set  forth  in  the  peti- 
tion, or  are  connected  with  the  subject  of  the  action,  and  when  the 
relief  asked  for  is  necessary  for  the  complete  determination  of  the 
question  involved  in  the  action.60 

§  591.     Matters  necessary  to  plead 

The  filing  of  a  demurrer  or  other  plea  does  not  preclude  setting 

up  in  the  answer  the  failure  of  a  foreign  corporation  to  comply  with 

the  statute  before  doing  business  in  the  state.67 

In  fact  such  failure  should  be  pleaded  in  the  answer.68 

Where  a  former  adjudication  is  relied  on  as  a  defense,  it  should 

be  made  to  appear  by  the  pleadings.69 

es  Rev.  Laws  1910,  §  4766. 

Answer  in  action  for  personal  injuries,  which  only  denies  that  injury  was 
caused  by  negligence  of  defendant,  and  alleges  that  it  was  wholly  caused  by 
negligence  of  plaintiff,  does  not  plead  contributory  negligence.  Colonial  Re- 
fining Co.  v.  Lathrop,  64  Old.  47,  166  P.  747,  L.  R.  A.  1917F,  890. 

The  answer  in  an  action  to  establish  a  parol  trust  in  land  conveyed  by  deed 
absolute  in  form  put  in  issue  the  existence  of  the  written  instrument  relied  on 
by  plaintiff,  as  well  as  the  fact  of  the  trust.  Chandler  v.  Roe,  46  Okl.  349, 
148  P.  1026. 

In  action  for  death  of  cattle  from  negligence  of  carrier  in  dipping  them 
held,  in  view  of  allegations  of  answer,  that  defendant  could  not  urge  that 
shipment  was  an  interstate  one,  governed  by  federal  law.  Missouri,  K.  &  T. 
Ry.  Co.  v.  Williamson,  75  Okl.  36,  180  P.  961. 

66  Minneapolis  Threshing  Mach.  Co.  v.  Currey,  89  P.  688,  75  Kan.  365. 

or  Bailey  v.  Parry  Mfg.  Co.,  59  Okl.  152,  158  P.  581. 

es  Bailey  v.  Parry  Mfg.  Co.,  59  Okl.  152,  158  P.  581. 

69  James  McCord  Co.  v'.  Johnson  Grocery  Co.   (Okl.)  172  P.  438. 

Sufficiency. — In  a  second  action  against  minor  children  of  a  deceased  Choc- 
taw  allottee  to  quiet  title  to  a  life  estate  and  to  enjoin  execution  of  judgment 
in  former  action,  pica  of  res  adjudicata  held  good.  Sweeney  v.  Coleman 
(Okl.)  169  P.  495. 

In  an  action  to  enjoin  the  taxation,  as  personal  property,  of  the  grantor's 
right  under  his  deed  to  receive  an  annual  payment  from  grantee,  prior  adju- 

HON.PL.&  PEAC.— 31  (481) 


§§  591-592  PLEADINGS  (Ch.  11 

Where  the  statute  directs  a  mine  foreman  to  do  certain  things, 
and  his  nonperformance  thereof  is  relied  on  by  mine  company  as 
a  defense  to  his  action  for  damages,  the  answer  should  allege  and 
show  that  he  was  within  class  of  persons  contemplated  by  stat- 
ute.70 

Where  a  sheriff  is  sued  for  taking  and  carrying  away  plaintiff's 
property,  and  disposing  of  it,  under  an  execution  and  judgment, 
he  must  plead  that  the  property  was  taken  under  a  valid  execution 
and  judgment,  and  must  show  that  the  property  was  taken  under  a 
valid  writ,  issued  by  a  court  of  competent  jurisdiction,  and  de- 
scribing the  property  taken  with  sufficient  certainty  to  identify 
it.71 

In  an  action  on  a  bond  guaranteeing  an  employer  against  lar- 
ceny or  embezzlement  by  an  employe,  payment  of  the  amount  of 
a  defalcation  by  the  employe  is  a  defense  which  must  be  pleaded 
to  be  available.72 

In  proceedings  in  bankruptcy,  brought  by  creditors  of  the  al- 
leged bankrupt,  the  alleged  bankrupt  must  deny  the  allegation 
in  the  petition  of  insolvency,  and  on  his  failure  so  to  do  the  allega- 
tion is  admitted.73 

§  592.     Affirmative  defenses — Forms 

Defenses  which  assume  or  admit  the  original  cause  of  action  al- 
leged, but  which  are  based  on  subsequent  matters  qualifying  or 

defeating  it,  must  ordinarily  be  pleaded.74 

• 

dication  against  its  taxability  held  sufficiently  pleaded.  Phillips  v.  Springer, 
172  P.  1017.  103  Kan.  108. 

A  plea  of  res  judicata,  showing  the  pleadings,  findings  of  fact,  conclusions 
of  law,  and  judgment  in  the  former  action,  shows  thereby  the  issues  and  facts 
determined  in  such  suit,  and  in  whose  favor  they  were  determined,  without 
further  allegations  for  that  purpose.  Dixon  v.  Caster,  70  P.  871,  65  Kan.  739. 

TO  Sandals  v.  Mizpah  Mining  Co.  (Okl.)  168  P.  808. 

71  Masters  v.  Teller,  56  P.  1067,  7  Okl.  668,  8  Okl.  271. 

72  Oklahoma  Sash  &  Door  Co.  v.  American  Bonding  Co.,  153  P.  1151. 

73  in  re  American  Pub.  Co.,  79  P.  762,  15  Okl.  177;   Appeal  of  Western  Pa- 
per Co.,  Id. 

74  Continental  Gin  Co.  v.  Arnold,  52  Okl.  569,  153  P.  160. 

In  an  action  for  the  value  of  material  furnished  to  the  defendant  board  of 
education,  held  that,  if  the  material  was  ordered  without  the  approval  of  the 
board,  such  fact  constituted  an  affirmative  defense  which  must  be  pleaded  by 
defendant.  Board  of  Education  of  City  of  Clinton  v.  Houilston,  51  Okl.  329, 
151  P.  1035. 

(482) 


Art.  5)  ANSWER  §  592 

Accord  and  satisfaction  and  transactions  allied  thereto  to  be 
available  as  defenses  must  be  specifically  pleaded.75 

The  defense  of  contributory  negligence,  in  an  action  against  a  city 
for  personal  injury  from  alleged  unsafe  condition  of  street  or  side- 
walk, is  an  affirmative  defense,  which  must  be  pleaded  and  proved.76 

The  defense  of  an  "act  of  God"  in  actions  of  negligence  must  be 
pleaded,  being  a  special  defense.77 

Payment  is  a  matter  of  defense  and  must  be  pleaded  and  proved 
by  him  who  claims  it.78 

The  defense  of  usury  is  waived  unless  specifically  pleaded.79 
It  cannot  be  raised  by  demurrer  to  a  petition  which  declares  on  an 
usurious  contract.80 

Clauses  of  Answers — Affirmative  Defenses — Accord  and  Satisfaction — 
Contributory  Negligence — Act  of  God — Payment — Forms 

ACCORD  AND   SATISFACTION 

That  after  the  sale  and  delivery  of  said  goods  the  plaintiff  agreed 
to  accept,  in  full  satisfaction  and  discharge  of  the  claim  of  plaintiff 
alleged  in  his  petition  herein,  the  promissory  note  of  the  defend- 
ant for  the  sum  of  $ ,  payable  on  or  before  the day  of 

,  19 — ,  and  that  thereupon  the  defendant  executed  and  deliv- 
ered said  note  to  the  plaintiff,  and  that  the  plaintiff  then  and  there 
accepted  and  received  the  same  in  full  satisfaction  and  discharge  of 
the  claim  sued  upon  herein. 

CONTRIBUTORY    NEGLIGENCE 

That  at  the  time  the  plaintiff  received  said  injuries  of  which  he 
complains  in  said  petition,  and  immediately  prior  thereto,  he,  said 
plaintiff,  was  guilty  of  contributory  negligence  whereby  the  said 

7  5  Continental  Gin  Co.  v.  Arnold.  52  Okl.  569,  153  P.  160. 

76  City  of  Gushing  v.  Bowdlear  (Okl.)  177  P.  561. 

TT  Sand  Springs  By.  Co.  v.  Baldridge,  60  Okl.  102,  159  P.  487. 

78  ince  Nursery  Co.  v.  Sams  (Okl.)  177  P.  370;  Standard  Fashion  Co.  v. 
Joels,  60  Okl.  195,  159  P.  846. 

7»  Stockyards  State  Bank  v.  Johnston,  52  Okl.  32,  152  P.  585. 

so  id.  Usury  must  be  specially  pleaded,  and,  where  the  defense  is  waived 
by  defendant  setting  up  other  matters  of  defense,  that  the  contract  sued  on 
provides  for  interest  in  excess  of  the  legal  rate  will  not  justify  the  court  in 
finding  the  same  usurious,  requiring  the  forfeiture  of  all  interest. 
Building  &  Loan  Ass'n  v.  Ptandall,  99  P.  655,  23  Okl.  45. 

(483) 


§§  592-593  PLEADINGS  (Ch.  11 

alleged  injuries  were  caused  and  occasioned,  and  at  said  time  the 
said  plaintiff  so  placed  himself  upon  the  train  and  car,  and  so  moved 
thereon,  and  remained  in  such  position,  when  he  knew  or  by  the 
exercise  of  ordinary  care  might  have  known,  that  upon  the  coupling 
of  said  cars  the  same  would  be  jarred  and  suddenly  moved,  and 
while  in  said  position,  and  so  negligent  as  aforesaid,  and  in  disre- 
gard of  all  precautions  on  his  part  for  his  own  safety,  the  said  plain- 
tiff received  the  injuries  aforesaid  by  reason  of  his  negligence 
aforesaid.81 

ACT  OF  GOD 

For  further  answer  to  said  petition,  defendant  says  that  the 
death  of  plaintiff's  husband,  at  the  time  and  place  stated  in  her  peti- 
tion, was  solely  the  result  of  a  sudden,  unusual,  unprecedented, 
unforeseen,  and  extraordinary  storm  then  and  there  prevailing  on 
the  line  of  the  railroad  of  defendant,  which  rendered  it  impossible 
to  prevent  said  injury  and  death. 

PAYMENT 

That  before  the  commencement  of  this  action,  the  defendant  fully 
satisfied  the  plaintiff's  claim  and  demand  sued  on  in  this  action,  by 
payment  thereof  on  the day  of ,  19 — ,  and  the  plain- 
tiff received  and  accepted  the  same  in  full  satisfaction  of  his  said 
claim. 

§  593.     Fraud— Form 

Fraud,  as  a  defense  to  an  action  on  contract,  cannot  be  pleaded 
in  general  terms;  the  specific  acts  constituting  the  fraud  must.be 
set  forth.82 

FRAUD  AS  AFFIRMATIVE  DEFENSE  IN  ANSWER 

That  at  the  time  of  the  execution  of  said  instrument  in  writing 
said  plaintiff'  falsely  and  fraudulently  represented  to  defendant  that 

si  Form  in  K.  C.  M.  &  O.  Ry.  v.  Loosley,  76  Kan.  103,  90  Pac.  990. 

82  Fire  Extinguisher  Mfg.  Co.  v.  City  of  Perry,  58  P.  635,  8  Okl.  429. 

In  an  action  on  a  note  and  to  foreclose  a  chattel  mortgage,  an  answer  alleg- 
ing that  they  were  procured  by  fraud,  and  setting  forth  the  fraudulent  acts 
which  were  the  sole  inducement  to  their  execution,  and  that  plaintiff,  who  pur- 
chased before  maturity,  had  knowledge  of  the  fraud,  states  a  sufficient  de- 
fense. Hankins  v.  Farmers'  &  Merchants'  Bank,  141  P.  272,  42  Okl.  330. 

(484) 


Art.  5)  ANSWER  §  594 

said  plaintiff  wished  to  borrow  money  for  his  own  use,  and  that, 
if  defendant  would  execute  said  instrument  in  writing,  he,  plaintiff, 
could  borrow  money  thereon ;  that  plaintiff  falsely  and  fraudulently 
stated  and  represented  to  the  defendant  that  he,  defendant,  would 
never  be  called  upon  to  pay  said  money,  or  any  part  thereof,  but 
that  defendant's  signature  was  to  be  used  solely  for  the  accommo- 
dation of  the  plaintiff ;  that  plaintiff  at  said  time  was  friendly  and 
intimate  with  the  defendant,  and  that,  induced  by  such  statements 
and  representations,  and  believing  the  same  to  be  true,  the  defend- 
ant signed  said  instrument  and  delivered  the  same  to  the  plaintiff  ; 
that  there  was  and  is  not  any  other  consideration  therefor. 

§  594.    Limitations — Form 

The  statute  of  limitations  is  an  affirmative  defense,  that  must 
be  pleaded  by  the  party  asserting  or  claiming  it.83 

Where  defendant  pleads  only  the  statute  of  limitations  of  one 
state,  he  cannot  rely  upon  or  prove  the  statute  of  -another  state.84 
To  avail  himself  of  the  statute  of  limitations  he  must  show  when  the 
action  was  commenced.85 

Where  the  action  is  barred  by  limitations,  but  the  allegations 
of  the  petition  are  too  broad  to  be  met  by  demurrer,  the  defendant 

ss  Torrey  v.  Campbell  (Okl.)  175  P.  524. 

Where  the  pleadings  on  their  face  do  not  show  that  the  cause  is  barred  by 
limitations,  the  statute  is  not  available  as  a  defense  unless  specially  pleaded. 
Betz  v.  Wilson,  87  P.  844,  17  Qkl.  383. 

Where  defendant  answers  by  general  denial,  and  does  not  demur  at  any 
stage  of  the  proceedings,  the  defense  of  limitations  cannot  be  raised  in  an  ac- 
tion for  breach  of  a  covenant  of  warranty.  Buchner  v.  Baker  (Okl.)  164  P. 
659. 

Where  it  did  not  appear  on  the  face  of  the  petition  that  the  cause  of  action 
was  barred,  and  the  statute  was  not  pleaded,  and  the  question  whether  the 
cause  of  action  was  barred  was  not  otherwise  raised,  the  defense  of  the  stat- 
ute was  waived.  Baker  v.  Sears,  42  P.  501,  2  Kan.  App.  617. 

The  statute  of  limitations,  if  relied  on  as  a  defense,  must  be  pleaded,  un- 
less the  complaint  shows  affirmatively  that  plaintiff's  action  is  barred.  Chel- 
lis  v.  Coble,  15  P.  505,  37  Kan.  558;  Mitchell  v.  Ripley,  49  P.  153,  5  Kan.  App. 
818. 

The  bar  of  the  statute  of  limitations  is  a  matter  of  defense,  and,  unless 
claimed,  is  waived.  Reaves  v.  Turner,  94  P.  543,  20  Okl.  492 ;  St.  Louis  &  S. 
F.  R.  Co.  v.  Bloom,  39  Okl.  78,  134  P.  432;  Groan  v.  Baden,  85  P.  532,  73  Kan. 
364. 

84  Hays  Land  &  Investment  Co.  v.  Bassett,  116  P.  475,  85  Kan.  48. 

ss  Pracht  v.  McNee,  18  P.  925,  40  Kan.  1. 

(485) 


§§  594-595  PLEADINGS  (Ch.  11 

may  enter  a  general  denial  and  await  a  failure  of  proof,  so  that  the 
pertinency  of  the  statute  becomes  apparent,  and  may  then  inter- 
pose a  demurrer  to  the  evidence.86 

In  an  action  on  an  open  account,  defendant  must  allege  that  he  has 
been  present  in  person  within  the  state  three  years  since  the  date 
of  the  last  item  in  such  account  before  the  commencement  of  the 
action.87 

An  answer,  in  a  suit  to  recover  land,  averring  that  the  plaintiff's 
cause  of  action,  if  he  had  any,  had  not  accrued  within  15  years,  is 
a  sufficient  plea  of  limitations.88 

Where  plaintiff,  to  remove 'the  bar  of  limitations,  pleads  a  pay- 
ment, a  general  denial  puts  the  burden  on  him,  and  defendant  need 
not  specially  plead  the  bar  of  the  statute.89 

LIMITATION  AS  AN  AFFIRMATIVE  DEFENSE  IN  ANSWER 

For  further  answer  and  defense  to  the  petition  of  plaintiff  here, 
defendant  states  that  the  alleged  cause  of  action  therein  stated  did 

not  accrue  within  years  next  before  the  commencement  of 

this  action,  and  that  the  same  is  barred  by  the  statute  of  limitations 
of  this  state,  to  wit,  by  (citing  section  of  statute). 

§  595.     Pleading  defenses  in  action  on  note 

In  an  action  on  a  note,  the  burden  is  upon  defendant,  admitting 
execution  and  delivery  of  the  note,  to  plead  affirmative  matter  by 
way  of  defense ;  90  but  where  the  petition  or  plaintiff's  proof  shows 
illegal  consideration,  it  is  available  without  pleading  it.91  , 

Failure  of  consideration  for  the  note  in  suit  is  good  defense  as 
between  original  or  immediate  parties.92 

*«  Arnold  v.  Earner,  163  P.  805,  100  Kan.  36. 

ST  Conlon  v.  Lanphear,  15  P.  600,  37  Kan.  431. 

ss  Anderson  v.  Canter,  63  P.  285,  10  Kan.  App.  167. 

as  Good  v.  Ehrlick,  72  P.  545,  67  Kan.  94. 

Where  the  complaint  in  an  action  brought  in  1887  on  a  note  given  in  1861 
alleges  a  payment  thereon  in  1883,  a  denial  under  oath  of  such  payment  is 
sufficient  to  present  the  issue  of  the  statute  of  limitations;  the  note  being 
barred  upon  its  face  unless  such  payment  is  proved.  Lemon  v.  Dryden,  23  P. 
641,  43  Kan.  477. 

90  Maston  v.  Glen  Lumber  Co.   (Okl.)   163  P.  128. 

»i  Chandler  v.  Lack  (Okl.)  170  P.  516. 

»2  Zebold  v.  Hurst  (Okl.)  166  P.  99,  L.  R.  A.  1917F,  579. 

(486)  , 


Art.  5)  ANSWER  §  595 

Partial  failure  of  consideration  is  a  good  defense  pro  tanto  to  an 
action  on  a  note,  except  as  against  an  innocent  holder  in  due 
course.93 

An  answer  pleading  usury,  no  consideration,  agency  between 
present  payee  and  cashier  of  former  payee,  and  present  payee's 
knowledge  of  usury,  was  good,  and  the  striking  of  such  answer  was 
error.94 

An  answer  averring  generally,  without  stating  further  facts,  that 
note  is  without  consideration,  is  good  against  demurrer;95  but 
it  is  not  error  to  sustain  the  demurrer  to  an  answer  in  an  action  on  a 
note  which  alleges  want  of  consideration  and  pleads  the  specific 
facts  from  which  such  conclusion  is  deduced,  when  the  facts  al- 
leged do  not  support  the  conclusion.96 

A  paragraph  of  the  answer  stating  that  "the  defendant  denies 
that  he  is  indebted  to  plaintiffs  in  any  sum  whatever"  states  no  de- 
fense.97 


93  Deming  Inv.  Co.  v.  Shannon,  62  Old.  277,  162  P.  471. 

The  maker  may  plead  that  amount  of  note  was  greater  than  balance  for 
which  the  note  was  given,  and  that  to  extent  of  excess  note  is  without  con- 
sideration. Holland  Banking  Co.  v.  Dicks  (Okl.)  170  P.  253. 

In  action  on  collateral  note  indorsed  to  seller  of  threshing  machine,  defend- 
ant's claim  that  buyer  had  agreed  to  thresh  his  crop,  and  was  attempting  to  do 
so  when  machine,  which  was  of  inferior  quality,  broke  down  and  caused  dam- 
ages to  him  in  excess  of  note,  constituted  no  defense,  as  if  machine  was  not 
as  represented,  or  if  seller  breached  warranty,  buyer  could  alone  complain. 
M.,Rumley  Co.  v.  Koetter  (Okl.)  178  P.  116.  In  action  on  collateral  note  in- 
dorsed to  seller  of  threshing  machine,  defendant's  claim  that  buyer  had  agreed 
to  thresh  his  crop  and  was  attempting  to  do  so  when  machine,  which  was  of 
inferior  quality,  broke  down  and  caused  damages  to  him  in  excess  of  note,  was 
no  defense,  as,  if  buyer  damaged  defendant  in  performance  of  contract,  his 
remedy  was  against  buyer.  Id.  In  action  on  collateral  note  indorsed  to  sell- 
er of  threshing  machine,  defendant's  claim  that  buyer  had  agreed  to  thresh  his 
crop  and  was  attempting  to  do  so  when  machine,  which  was  of  inferior  quali- 
ty, broke  down  and  caused  damages  to  him  in  excess  of  note,  was  no  defense, 
as  there  was  no  privity  between  defendant  and  seller  regarding  buyer's  breach 
of  oral  contract  to  thresh  wheat.  Id. 

The  maker  of  a  note  is  entitled  to  make  the  same  defenses  against  it  in  the 
hands  of  one  not  a  holder  in  due  course  that  he  would  be  entitled  to  make  if 
it  were  in  the  hands  of  the  original  payee.  Douglass  v.  Brown,  56  Okl.  6,  155 
P.  887. 

94  Callaham  v.  Thurmond  (Okl.)  172  P.  798. 

95  Zebold  v.  Hurst  (Okl.)  166  P.  99,  L.  R.  A.  1917F,  579. 
so  Metz  v.  Winne,  79  P.  223,  15  Okl.  1. 

»7  Spencer  v.  Turney,  49  P.  1012,  5  Okl.  6S3. 

(487) 


§    595  PLEADINGS  (Ch.  11 

An  answer  admitting  the  execution,  but  denying  that  the  plaintiff 
is  the  owner  of  the  note,  and  that  it  has  been  transferred  before 
maturity,  without  notice,  and  alleging  that  the  note  is  void  for 
fraud  and  deceit  on  the  part  of  the  original  payee  in  obtaining  the 
execution  of  the  same,  states  a  good  defense.98 

A  plea  of  nonperformance  of  a  condition  precedent  as  a  bar  to  a 
recovery  on  a  note  which  on  its  face  shows  no  privity,  but  which 
avers  that  the  contract  was  made  by  one  of  the  parties  thereto  as 
the  special  agent  of  defendant  for  the  purpose  of  making  the  con- 
tract, is  good  as  showing  such  privity  in  defendant  as  will  enable 
him  to  take  advantage  of  its  terms." 

The  answer,  in  an  action  on  a  purchase-money  note,  was  not 
demurrable,  where  it  alleged  that  the  property  was  unsound,  and 
that  the  buyer's  admission  of  soundness  and  of  release  from  war- 
ranty was  the  result  of  mutual  mistake.1 

A  note  founded  on  a  consideration  against  public  policy  will  not 
be  enforced,  even  though  the  defense  is  not  pleaded.2 

Where  the  answer  in  an  action  on  purchase-money  notes  sets  up 
failure  of  title,  it  must  contain  an  offer  to  reconvey.8 

Where,  on  execution  of  a  note  payable  to  a  person  named,  or  his 
order,  the  maker  fails,  to  pay  it,  and  the  payee  files  a  petition  recit- 
ing the  execution  of  a  note  for  a  valuable  consideration  and  the 
default  of  defendant,  ownership  is  presumed  in  the  plaintiff,  and 
it  is  not  absolutely  necessary  for  him  to  allege  that  he  is  still  the 
owner  and  holder  of  such  note,  and  an  answer  denying  that  he  is  the 
owner  and  holder  states  no  defense,  so  that  plaintiff  is  entitled  to 
judgment  on  the  pleadings.4 

In  the  absence  of  any  allegation  that  the  signer  of  a  note  is  unable 
to  read,  an  answer  admitting  the  execution  of  a  note  sued  on,  but 
alleging  that  the  person  procuring  the  note  misrepresented  its  con- 
as  Edwards  v.  Miller,  30  Okl.  442,  120  P.  996. 

99  Cooper  v.  Ft.  Smith  &  W.  R.  Co.,  99  P.  785,  23  Okl.  139. 

1  McDonald  v.  McKinney  Nursery  Co.,  44  Okl.  62,  143  P.  191. 

2  McGuffin  v.  Coyle  &  Guss,  85  P.  954,  16  Okl.  648,  6  L.  R.  A.  (N.  S.)  524;  Id., 
16  Okl.  648,  86  P.  962,  6  L.  R.  A.  (N.  S.)  524. 

3  Herron  v.  Haurbour,  57  Okl.  71,  155  P.  506 ;  Rev.  Laws  1910,  §  986. 
Where  the  defense  in  an  action  for  price  is  failure  of  warranty  an  offer  to 

restore  the  goods  should  be  alleged  in  the  answer.    Barber  Medicine  Co.  v. 
Bradley,  48  Okl.  82,  150  P.  127. 

*  Berry  v.  Barton,  71  P.  1074,  12  Okl.  221,  66  L.  R.  A.  513. 

(488) 


Art.  5)  ANSWER  §§  596-599 

ditions   and   defendant's  liability,   does   not  constitute   a   defense, 
where  the  note  is  unambiguous  in  its  terms.5 

§  596.     Pleading  attachment  or  garnishment 

In  pleading  a  pending  attachment  or  garnishment  as  a  defense, 
the  defendant  should  show  what  portion  of  the  debt  has  been  at- 
tached or  garnished.6 

§  597.     Defenses  in  replevin 

In  action  for  possession  of  a  note  or  for  its  value  in  the  alterna- 
tive, an  answer,  pleading  that  since  commencement  of  suit  the  note 
had  been  delivered  by  defendant  and  accepted  by  plaintiff,  set  up 
'a  valid  defense,  and  a  demurrer  thereto  was  properly  overruled.7 

§  598.     Adverse  possession 

Where  the  entry  of  defendant  on  land  is  permissive  and  in  privity 
with  the  owner's  title,  to  show  adverse  possession  he  must  plead 
such  specific  acts  of  disloyalty  to  the  title  or  acts  of  dominion  giving 
adverse  character  to  his  possession  as  will  preclude  all  want  of 
knowledge  on  the  part  of  the  owner.8 

§  599.     Inconsistent  defenses 

A  defendant  may  set  out  in  his  answer  inconsistent  defenses ;  8 
but  where  the  answer  sets  up  repugnant  or  inconsistent  defenses, 
a  denial  of  a  fact  alleged  in  the  complaint  in  one  part  of  the  answer 
is  modified  by  an  admission  thereof  in  another  part  of  the  answer, 
and  such  admission  will  be  taken  as  true.10 

However,  an  admission  in  an  adversary's  pleading,  to  be  avail- 

s  Guthrie  &  W.  B.  Co.  v.  Rhodes,  91  P.  1119,  19  Okl.  21,  21  L.  R.  A.  (N.  S.) 
490. 

6  Clark  v.  Marbourg,  6  P.  548,  33  Kan.  471. 

7  Harn  v.  Security  Nat.  Bank  of  Oklahoma  City  (Okl.)  177  P.  598. 
s  Acton  v.  Culbertson,  38  Okl.  280,  132  P.  812. 

o  Bilby  v.  Owen  (Okl.)  181  P.  724 ;  Metcalf  v.  Glaze  (Okl.)  173  P.  446 ;  Emer- 
sou-Brantingham  Implement  Co.  v.  Ware  (Okl.)  174  P.  1066. 

Where  defendant  claims  title  by  purchase  and  also  claims  right  to  posses- 
sion from  having  paid  incumbrances  placed  on  the  property  by  plaintiff,  the 
defenses  are  not  inconsistent.  New  v.  Smith,  145  P.  880,  94  Kan.  6,  L.  R.  A. 
1915F,  771,  Ann.  Cas.  1917B,  362. 

10  Conwill  v.  Eldridge  (Okl.)  177  P.  79. 

A  defendant,  sued  on  a  contract  to  accept  and  pay  for  a  life  insurance  pol- 
icy) by  defending  on  the  ground  that  plaintiffs  had  broken  their  promise  to 
pay  for  him  a  loan  commission  less  in  amount  than  the  premium,  held  not  to 

(489) 


§§  599-601  PLEADINGS  (Ch.  11 

able,  must  be  taken  with  all  the  qualifying  clauses  included  in  it; 1X 
and  where  facts  are  alleged  in  a  pleading  in  connection  with  an 
admission  which  nullifies  it,  the  effect  as  an  admission  is  de- 
stroyed.12 

In  action  for  damages  from  obstruction  to  channel  of  water 
course,  defendant  may  deny  the  existence  of  the  channel  and  plead 
that  he  had  placed  an  embankment  on  his  own  land,  and  not  in  the 
channel,  and  had  acquired  the  right  to  maintain  it  by  prescrip- 
tion.13 

In  action  for  cancellation  of  deed,  the  sole  defense  of  a  purchase 
for  a  valuable  and  paid  consideration  excludes  a  defense  that  the 
lands  in  question  passed  by  gift.1*  » 

§  600.     Negative  pregnant 

In  a  suit  on  a  note  wherein  plaintiffs  alleged  the  execution  and 
delivery  of  the  note,  a  paragraph  of  the  answer  alleging  that  de- 
fendant did  not  execute  and  deliver  it  is  a  negative  pregnant,  which 
admits  the  execution  of  the  note.15 

§  601.     Defense  in  libel  and  slander 

In  actions  of  libel  or  slander  "the  defendant  may  allege  the  truth 
of  the  matter  charged  as  defamatory,  and  may  prove  the  same,  and 
any  mitigating  circumstances,  to  reduce  the  amount  of  damages,  or 
he  may  prove  either."  16 

have  admitted  a  liability  for  the  difference.  Woodell  v.  Gibson,  140  P.  107,  92 
Kan.  118. 

In  an  action  to  quiet  title,  a  special  answer,  alleging  that,  when  plaintiff 
purchased  the  outstanding  ad-verse  title,  he  did  it  as  the  agent  of  defendant, 
and  that  defendant  was  entitled  to  have  the  court  decree  him  to  be  the  legal 
owner,  modified  the  general  denial  so  as  to  admit  without  further  proof  that 
plaintiff  held  the  legal  title  when  the  action  was  commenced.  Elliott  v.  Hud- 
son, 113  P.  307,  84  Kan.  7. 

Estoppel. — In  an  action  to  recover  money  paid  on  the  price  of  land  for  fail- 
ure of  defendant  to  comply  with  a  contract,  where  defendant  alleges  full  com- 
pliance and  asks  for  specific  performance,  a  judgment  for  the  balance  of  the 
price,  and  offers  proof  of  execution  by  himself  and  wife  of  the  deed  conveying 
the  land,  he  is  estopped  to  claim  in  the  same  action  that  the  contract  for  the 
sale  of  land  is  void  on  the  ground  that  it  comprises  a  homestead  and  that  the 
wife  failed  to  join  in  the  contract.  McNutt  v.  Nellaus,  108  P.  834,  82  Kan.  424. 

11  Oklahoma  Moline  Plow  Co.  v.  Smith,  139  P.  285,  41  Okl.  498. 

12  Id. 

is  Metcalf  v.  Glaze  (Okl.)  173  P.  446. 
i*  Marshall  v.  Grayson,  62  Okl.  45,  166  P.  86. 
is  Spencer  v.  Turney,  49  P.  1012,  5  Okl.  683. 
i«  Rev.  Laws  1910,  §  4777. 

(490) 


Art.  5)  ANSWER     .  §  601 

A  plea  of  justification  must  justify  the  sting  of  the  very  charge 
alleged.17 

Defendant  may  set  up  as  a  defense  bpth  a  general  denial  and  that 
the  defamatory  language  used  by  him  is  true.18 

Where  defendant's  answer  admits  the  publication  and  pleads 
the  truth,  it  also  admits  use  of  the  words  with  the  meaning  as- 
signed to  them  in  the  petition.19 

ANSWER  IN  LIBEL  OR  SLANDER  SUIT 

(Caption.) 

Comes  now  the  said  defendant,  and  for  his  answer  to  the  plain- 
tiff's petition  filed  herein  alleges  and  states : 

1.  That  he  denies  each  and  every  allegation  of  fact  therein  con- 
tained. 

2.  That  he  specifically  denies  that  on  or  about  the  day 

of  ,  19 — ,  or  at  any  other  time,  he  spoke  or  published  the 

words  as  alleged  in  plaintiff's  petition,  or  that  he  at  any  time  spoke 
or  published  any  false  or  defamatory  words  with  intent  to  injure 
the  plaintiff. 

3.  That  the  said  supposed  false  and  defamatory  words,  as  alleged 
in  plaintiff's  petition,  are  true. 

4.  And  for  a  partial  defense,  and  by  way  of  mitigation  of  dam- 
ages, the  defendant  alleges  that  the  plaintiff  had  been,  prior  to  the 
time  alleged  in  the  petition,  employed  by  defendant,  and  one  A.  B., 
being  desirous  of  employing  the  plaintiff,  inquired  of  the  defendant 
as  to  the  character  of  the  plaintiff,  and  the  defendant  then  stated  to 
him  the  following  matters  and  things :    (Setting  forth  statements 
made;)    that  the  defendant  had  reasonable  cause  to  believe,  and 
did  believe,  that  said  statements  were  true,  and  did  not  in  any 
other  way  publish  the  same ;    that  said  statements  were  made  by 
defendant  without  malice  on  his  part. 

(Conclusion.) 

17  Yorhees  v.  Toney,  122  P.  552,  32  Okl.  570. 

For  a  plea  of  justification  to  be  a  defense  to  libel  it  must  possess  great  cer- 
tainty of  averment  and  must  justify  the  sting  of  the  very  charge  alleged,  and 
it  is  not  permissible  to  set  up  a  charge  of  the  same  general  nature  but  dis- 
tinct as  to  the  particular  subject.  Bodine  v.  Times-Journal  Pub.  Co.,  110  P. 
1096,  26  Okl.  135,  31  L.  R,  A.  (N.  S.)  147. 

is  Wallace  v.  Kopenbrink,  31  Okl.  26,  119  P.  579;  Vorliees  v.  Toney,  122  P. 
552,  32  Okl.  570. 

i»  Spencer  v.  Minnick,  139  P.  103,  41  Okl.  613. 

(491) 


§§  602-603  PLEADINGS  (Ch.  11 

§  602.     Supplemental  answer 

On  proper  showing,  leave  should  be  granted  to  file  a  supple- 
mental answer  on  such  terms  as  may  be  just.20 


SUPPLEMENTAL   ANSWER 

(Caption.) 

Comes  now  the  said  defendant,  C.  D.,  leave  of  court  having  first 
been  obtained,  and  files  this  his  supplemental  answer  to  plaintiff's 
petition  herein,  and  alleges  and  states: 

That  since  the  filing  of  the  defendant's  answer  herein,  the  fol- 
lowing facts,  material  to  this  action  and  in  further  defense  to  said 
petition,  have  arisen:  ^Setting  forth  additional  facts  which  it  is 
desired  to  plead.) 

(Conclusion.) 

DIVISION  II. — GENERAL  DENIAL 

§  603.     Effect  and  sufficiency 

A  general  denial  is  equivalent  to  a  plea  of  nul  tiel  record  at  com- 
mon law.21 

An  answer,  which  denies  each  and  every  allegation  of  the  peti- 
tion of  plaintiff,  is  sufficient  as  a  general  denial,22  and  is  the  usual 
form;  but  an  answer  in  which  defendant  "denies  each  and  every 
allegation  in  the  second  amended  petition  herein  that  is  prejudicial 
to  defendant"  lias  been  held  sufficient.28 

A  general  denial  raises  the  question  of  the  statute  of  frauds.2* 

20  In  ejectment,  defendant,  to  support  the  title  and  possession  claimed  by 
him,  asked  leave  to  file  a  supplemental  answer  setting  up  a  title  acquired  sub- 
sequent to  the  action,  and  offered  in  evidence  proofs  of  such  title.    Held,  that 
permission  to  file  a  supplemental  answer  should  have  been  granted  on  terms. 
Peterson    v.  Albach,  32  P.  917,  51  Kan.  150. 

21  Oliver  v.  Gimbel,  38  Okl.  50,  132  P.  144. 
For  form  of  general  denial,  see  post,  §  615. 

22  Nix  v.  Gilmer,  50  P.  131,  5  Okl.  740. 

23  Prunty  v.  Consolidated  Fuel  &  Light  Co.,  108  P.  802,  82  Kan.  541.    ' 

24  Render  v.  Lillard,  61  Okl.  206,  160  P.  705,  L.  R.  A.  1917B,  1061. 

A  general  denial  has  been  held  sufficient  to  raise  the  issue  of  the  invalidity 
of  a  contract  under  the  statute  of  frauds.  Altoona  Portland  Cement  Co.  v. 
Burbank,  44  Okl.  75,  143  P.  845. 

Where  a  party  pleads  an  exception  to  toll  the  statutes,  a  general  denial  puts 
him  on  proof  of  such  allegation.  Theis  v.  Board  of  County  Com'rs  of  Beaver 
County,  97  P.  973,  22  Okl.  333. 

(492) 


Art.  5)  ANSWER  §§  603-606 

In  an  action  for  conversion,  a  general  denial  puts  in  issue  the 
ownership  of  the  property.26 

§  604.     Disclaimer — Form 

An  unqualified  general  denial  by  defendants,  who  are  strangers 
to  the  mortgage,  will  ordinarily,  in  the  absence  of  other  defenses 
be  construed  as  a  disclaimer.28  A  general  denial  followed  by  pleas 
of  res  judicata  held  not  a  disclaimer,  where  the  petition  did  not  de- 
mand of  such  defendants  a  foreclosure  of  other  interests,  but  alleg- 
ed that  they  subsequently  acquired  an  inferior  interest.27  An  an- 
swer will  not  be  construed  as  a  disclaimer  of  interest  in  mortgaged 
property,  unless  it  shows  an  unequivocal  intent  to  disclaim.28 

DISCLAIMER 

Comes  now  the  defendant,  F.  S.,  and  hereby  disclaims  any  right, 
title,  interest,  or  estate  in  the  real  estate  set  out  in  plaintiff's  peti- 
tion under  and  by  virtue  of  a  deed  or  contract  made  by  the  plaintiffs 
to  the  said  J.  D. 

Wherefore,  this  defendant  prays  that  he  may  go  hence  without 
day  and  recover  his  costs  herein  expended. 

O.  B.  &  M., 

Attorneys  for  Defendant,  F.  S. 

§  605.     Must  be  entered  for  whom 

"The  guardian  of  an  infant  or  person  of  unsound  mind,  or  at- 
torney for  a  person  in  prison,  shall  deny,  in  the  answer,  all  the 
material  allegations  of  the  petition  prejudicial  to  such  defendant."  29 

§  606.     Effect — By  guardian  ad  litem 

A  general  denial,  filed  by  the  guardian  ad  litem  of  a  minor,  puts 
in  issue  every  allegation  of  a  petition,  including  allegations  of  the 
execution  of  written  instruments  and  other  allegations  which  an 
adult  must  deny  under  oath.30  . 

25  Hopkins  v.  Dipert,  69  P.  883,  11  Okl.  630;  Robinson  v.  Peru  Plow  &  Wheel 
Co.,  31  P.  998,  1  Okl.  140. 

26  De  Watteville  v.  Sims,  44  Okl.  708,  146  P.  224. 

27  Id. 

28  Id. 

2»  Rev.  Laws  1910,  §  4752. 

so  Sims  v.  Hedges,  123  P.  155,  32  Okl.  683;  Rev.  Laws  1910,  §§  4752,  4760. 

(493) 


§§  606-607  PLEADINGS  (Ch.  11 

A  guardian  ad  litem  of  an  infant  defendant  should  urge  every  de- 
fense available  under  the  law.31 

DIVISION  III. — VERIFIED  DENIAL, 

§  607.     Verification  in  general 

"In  all  actions,  allegations  of  the  execution  of  written  instru- 
ments, and  endorsements  thereon,  of  the  existence  of  a  corporation 
or  partnership,  or  of  any  appointment  of  authority,  or  the  correct- 
ness of  any  account  duly  verified  by  the  affidavit  of  the  party,  his 
agent  or  attorney,  shall  be  taken  as  true  unless  the  denial  of  the 
same  be  verified  by  the  affidavit  of  the  party,  his  agent  or  attor- 
ney." 82 

"The  verification  mentioned  in  the  last  section  shall  not  be  re- 
quired to  the  answer  of  a  guardian  defending  for  an  infant  or 
person  of  unsound  mind,  or  a  person  imprisoned."  3S 

It  is  within  the  discretion  of  the  court  to  permit  pleadings  to  be 
verified  at  the  commencement  of,  or  during  the  trial.34 

si  Iowa  Laud  &  Trust  Co.  v.  Dawson,  134  P.  39,  37  Okl.  593. 

No  presumption  can  be  permitted  against  infant,  but  every  presumption 
must  be  indulged  in  his  favor,  and  guardian  ad  litem  or  other  representative 
of  infant  must  urge  every  question  available  in  infant's  behalf  and  on  his 
failure  to  do  so  court  must  see  that  his  rights  are  protected.  In  re  Sanders' 
Estate  (Okl.)  168  P.  197. 

32  Rev.  Laws  1910,  §  4759. 

Under  the  Kansas  Code,  providing  that  in  cases  of  transfer  or  interest  the 
action  may  be  prosecuted  in  the  name  of  the  original  party,  an  averment  in 
the  answer  that  plaintiff  had  conveyed  his  interest  in  the  land  since  the  com- 
mencement of  the  action,  which  was  not  denied  under  oath  was  not  sufficient 
to  bar  a  recovery  by  the  plaintiff.  Douglas  v.  Muse,  61  P.  413,  62  Kan.  865. 

33  Rev.  Laws  1910,  §  4760. 

Rev.  Laws  1910,  §  4760,  expressly  exempts  the  guardian  of  an  infant  or  per- 
son of  unsound  mind  from  the  requirements  of  section  4759,  declaring  that  al- 
legations as  to  the  execution  of  a  written  instrument  and  indorsements  duly 
verified  shall  be  taken  as  true,  unless  the  denial  thereof  is  verified  in  like 
manner.  Kaufman  v.  Boismier,  105  P.  326,  25  Okl.  252. 

Where  an  answer  is  filed  jointly  by  the  administrator  and  the  guardian  of 
certain  minors  denying  the  execution  of  the  instrument  sued  on,  the  verifica- 
tion of  the  administrator's  answer  verifying  his  belief  that  the  facts  therein 
stated  are  true,  as  authorized  by  Rev.  Laws  1910,  §  4762,  is  sufficient ;  the  ad- 
ministrator not  being  required  to  verify  the  answer  in  the  form  required  by 
section  4765.  Kaufman  v.  Boismier,  105  P.  326,  25  Okl.  252. 

34  Permission  to  defendant  at  opening  of  trial  to  verify  a  general  denial, 
previously  verified  by  his  counsel,  was  not  an  abuse  of  discretion.    State  Bank 
of  Downs  v.  Abbott,  104  Kan.  344,  179  P.  326. 

Where  a  verification  of  plaintiff's  reply  did  not  affect  or  change  issues,  de- 

(494) 


Art.  5)  ANSWER  §  608 

§  608.     Who  may  verify 

"If  there  be  several  persons  united  in  interest  and  pleading  to- 
gether, the  affidavit  may  be  made  by  any  one  of  such  parties. 
When  a  municipal  or  other  corporation  is  a  party,  the  verification 
may  be  made  by  an  officer  thereof,  its  agent  or  attorney."  30 

"In  all  cases  where  the  party  pleading  is  a  nonresident  of  the 
county  in  which  the  action  is  brought,  or  if  he  shall  be  absent  from 
the  county  in  which  the  pleading  is  filed,  an  affidavit,  made  be- 
fore filing  the  pleading,  stating  the  substance  of  the  facts  after- 
wards inserted  in  the  pleading,  shall  be  a  sufficient  verification. 
Such  affidavit  shall  be  filed  with  the  pleading  intended  to  be  veri- 
fied thereby." 36 

"Where  the  affidavit  is  made  by  the  agent  or  attorney,  it  must 
set  forth  the  reason  why  it  is  not  made  by  the  party  himself.  It 
can  be  made  by  the  agent  or  attorney  only : 

"First.  When  the  facts  are  within  the  personal  knowledge  of 
the  agent  or  attorney. 

"Second.  When  the  plaintiff  is  an  infant  or  of  unsound  mind 
or  imprisoned. 

"Third.  When  the  pleading  to  be  verified  is  founded  upon  a 
written  instrument  for  the  payment  of  money  only,  and  such  in- 
strument is  in  the  possession  of  the  agent  or  attorney. 


fendant  was  not  prejudiced  by  court's  permission  that  reply  be  verified  during 
the  trial.  Kuykendall  v.  Lambert  (Okl.)  173  P.  657. 

Where  an  action  is  on  a  written  contract  not  in  the  possession  of  plaintiff, 
and  the  substance  only  is  set  up  in  the  petition,  and  defendant  by  an  unveri- 
fied answer  dtnies  the  averments  of  the  petition,  and  the  case  is  tried  on  the 
theory  that  the  terms  of  the  contract  are  in  issue,  and  afterwards,  on  a  second 
trial,  where  plaintiff  himself  attaches  a  copy  of  the  contract  which  was,  in 
fact,  executed,  to  his  deposition,  and  swears  that  his  action  is  founded  on 
such  contract,  •  it  is  an  abuse  of  discretion  for  the  court  to  refuse  to  permit  de- 
fendant to  verify  its  answer,  and  to  exclude  proof  of  the  contract  in  fact 
made,  and  of  facts  tending  to,  defeat  plaintiff's  cause  of  action  under  it.  Na- 
tional Mortgage  &  Debenture  Co.  v.  Lash,  55  P.  846,  60  Kan.  141. 

35  Rev.  Laws  1910,  §  4761. 

3*  Rev.  Laws  1910,  §  4763. 

Gen.  St.  c.  95,  §  112,  provides  that  an  affidavit  verifying  a  pleading  shall  be 
filed  with  the  pleading  intended  to  be  verified  thereby.  Held,  that  an  affidavit' 
which  was  filed  December  21,  1893,  in  support  of  a  motion  to  dissolve  an  at- 
tachment, cannot  be  considered  as  verifying  an  answer  filed  in  the  attachment 
proceedings  on  January  6,  1894.  Johnson  v.  Woodbury  Trust  Co.,  64  P.  1030, 
63  Kan.  880. 

(495) 


§    608  PLEADINGS  (Ql.  11 

"Fourth.  When  the  party  is  not  a  resident  of,  or  is  absent  from 
the  county."  37 

Under  the  statute  providing  four  different  grounds  upon  which 
the  required  affidavit  of  denial  can  be  made  by  the  attorney  or 
agent,  any  one  of  the  grounds  is  sufficient  to  authorize  the  attor- 
ney to  make  the  affidavit.88 

The  verification  must  set  forth  why  it  was  not  made  by  the  party 
by  showing  some  of  the  grounds  specified  in  such  section ; 39  and 

ST  Rev.  Laws  1910,  §  4765. 

Where  allegations  of  a  petition  set  up  authority  of  an  agent,  a  plea  deny- 
ing this  authority,  when  verified  by  affidavit  of  an  agent  or  attorney,  must, 
under  Rev.  Laws  1910,  §  4765,  set  forfch  the  reasons  why  it  is  not  made  by  the 
party,  and,  when  it  does  not  bring  the  plea  within  any  of  the  grounds  there- 
in provided,  it  is  insufficient  to  raise  the  authority  of  the  agent  Chicago,  R. 
I.  &  P.  Ey.  Co.  v.  Mitchell,  101  P.  850,  19  Old.  579.  The  word  "party,"  as  used 
in  Rev.  Laws  1910,  §  4765,  providing  when  affidavit  is  made  by  agent  or  attor- 
ney it  must  set  forth  why  it  is  not  made  by  the  party  himself,  means  party  to 
the  suit,  whether  a  natural  person  or  a  corporation.  Id. 

Rev.  Laws  1910,  §  4759,  provides  that  the  correctness  of  any  account  duly 
verified  by  the  affidavit  of  the  party,  his  agent  or  attorney,  shall  be  taken  as 
true,  unless  the  denial  of  the  same  shall  be  verified  by  the  affidavit  of  the 
party,  his  agent  or  attorney;  and  section  4765  provides  that,  when  made  by 
the  agent  or  attorney,  it  must  set  forth  the  reasons  why  it  is  not  made  by  the 
party  himself.  Held,  that  an  affidavit  denying  the  correctness  of  an  account, 
when  made  by  an  attorney,  without  setting  forth  the  reasons  why  it  is  not 
made  by  the  party  himself,  is  insufficient  to  question  the  correctness  of  the  ac- 
count. Board  of  Com'rs  of  Garfield  Bounty  v.  Isenberg,  61  P.  1067, 10  Okl.  378. 

Where  defendant  does  not  put  in  issue  an  allegation  of  the  petition  that 
defendant  is  a  foreign  corporation,  a  subsequent  affidavit  attached  to  the  an- 
swer and  sworn  to  by  an  attorney  is  not  insufficient  for  failure  to  comply  with 
Rev.  Laws  1910,  §  4765,  by  showing  that  defendant  is  a  foreign  corporation. 
St.  Paul  Fire  &  Marine  Ins.  Co.,  of  St.  Paul,  Minn.,  v.  Earl,  54  Okl.  305,  153 
P.  867. 

A  verification  by  an  attorney,  which  states  "that  he  is  familiar  with  all  the 
facts  set  out  in  the  *  *  *  answer,  and  knows  the  contents  thereof,"  and 
that  said  answer,  and  all  the  facts  and  allegations  contained  therein,  are  true 
and  correct,  according  to  his  belief,  is  a  sufficient  verification,  under  Code  Civ. 
Proc.  §  114,  providing  that  a  verification  can  be  made  by  an  attorney,  inter 
alia,  when  the  facts  are  within  his  personal  knowledge.  Johnson  v.  Wood- 
bury  Trust  Co.,  57  P.  134,  8  Kan.  App.  860. 

as  Gibson  v.  Shorb,  52  P.  579,  7  Kan.  App.  732. 

so  Aldred  v.  Ray,  54  Okl.  154,  153  P.  664,  7  A.  L.  R.  1. 

The  plaintiff  corporation  sued  as  the  assignee  of  a  lease  executed  by  de- 
fendant, and  the  answer  consisted  of  a  general  denial  and  a  special  denial, 
and  was  verified  by  R.  as  attorney  and  agent  of  the  defendant.  R.  alleged  in 
his  affidavit  that  he  was  familiar  with  all  facts  in  the  answer,  and  that  it 
was  true  and  correct,  as  he  verily  believed.  Held,  that  neither  tne  answer  nor 
the  affidavit  showed  a  state  of  facts  which,  under  the  Code,  authorized  R.  to 

(496) 


Art.  5)  ANSWER  §§  608-609 

it  should  show  that  affiant  has  some  personal  knowledge  of  the 
facts  stated  in  the  pleading.40 

An  affidavit  which  states  that  the  affiant  is  attorney  for  a  de- 
fendant who  "is  a  nonresident  or  absent  from  the  county,  and  that 
affiant  is  informed  and  believes  that  the  allegations  of  the  answer 
are  true,  is  a  sufficient  verification.*1 

§  609.     How  made — On  belief 

"The  affidavit  verifying  pleadings  may  be  made  before  any  per- 
son before  whom  a  deposition  might  be  taken,  and  must  be  signed 
by  the  party  making  the  same;  and  the  officer  before  whom  the 
same  was  taken  shall  certify  that  it  was  sworn  to  or  affirmed  be- 
fore him,  and  signed  in  his  presence.  The  certificate  of  such  offi- 
cer signed  officially  by  him,  shall  be  evidence  that  the  affidavit 
was  duly  made,  that  the  name  of  the  officer  was  written  by  himself, 
and  that  he  was  such  officer."  42  * 

In  an  action  on  a  written  obligation,  the  execution  of  which  is 
put  in  issue  by  a  verified  denial,  the  burden  of  proof  is  on  the  plain- 
tiff, and,  in  the  absence  of  any  proof  thereof,  a  demurrer  to  his  evi- 
dence should  be  sustained.43 

Where  a  verified  denial  is  filed,  the  execution  of  a  written  instru- 
ment must  be  proved  before  the  instrument  can  be  introduced  in 
evidence.44 

verify  the  answer  as  t  !ie  agent  or  attorney  of  defendant.    Johnson  v.  Wood- 
bury  Trust  Co.,  64  P.  1030,  63  Kan.  880. 

*o  Aiken  v.  Franz,  43  P.  306,  2  Kan.  App.  75. 

41  Gibson  v.  Shorb,  52  P.  579,  7  Kan.  App.  732. 

42  Rev.  Laws  1910,  §  4764. 

43  Correll  v.  Morgan  (Okl.)  174  P.  509. 

44  Moore  v.  Leigh-Head  &  Co.,  48  Okl.  228,  149  P.  1129. 

Civ.  Code  Kan.  §  108,  provides  that  in  all  actions  allegations  of  the  execu- 
tion of  written  instruments  and  indorsements  thereon  shall  be  taken  as  true 
unless  the  denial  of  the  same  be  verified  by  affidavit.  Held,  in  an  action  on 
a  note,  that  since,  on  a  verified  general  denial,  it  devolved  on  plaintiff  jto 
prove  the  execution  of  the  instrument  as  alleged  in  the  petition,  defendant 
could  show  an  alteration  by  the  insertion  of  the  figure  8  in  the  interest  clause. 
J.  I.  Case  Threshing  Mach.  Co.  v.  Peterson,  33  P.  470,  51  Kan.  713. 

Where  plaintiff  in  replevin,  in  his  petition,  claims  a  special  ownership  in  the 
goods  sued  for  by  virtue  of  a  chattel  mortgage  executed  and  delivered 
to  him  by  other  parties  than  defendant,  and  defendant  pleads  by  general  de- 
nial, Under  oath,  an  issue  is  formed  as  to  the  execution  of  the  mortgage,  and 
it  is  error  to  permit  the  mortgage  to  be  introduced  in  evidence  without  proof 
of  its  execution.  Lilly  v.  Russell  &  Co.,  44  P.  212,  4  Okl.  94. 

HON.  PL.  &  PRAC.— 32  (497) 


§§  609-610  PLEADINGS  (Ch.  11 

On  a  verified  denial  of  the  petition  a  sworn  itemized  statement 
on  which  plaintiff  relies  is  inadmissible  over  objection.43 

Where  the  defendant  denies  under  oath  the  execution  of  a  poli- 
cy, the  burden  is  on  the  plaintiff  to  make  prima  facie'  proof  of  exe- 
cution thereof  before  introducing  the  policy  in  evidence.46 

"The  affidavit  shall  be  sufficient  if  it  state  that  the  affiant  be- 
lieves the  facts  stated  in  the  pleadings  to  be  true."  4T 

§  610.     Execution  of  written  instruments — Indorsement 

Where  a  petition  alleges  a  written  contract,  a  general  denial, 
which  is  not  verified,  admits  the  written  agreement  and  its  purport 
as  pleaded,  as  an  allegation  of  the  execution  of  a  written  instru- 
ment is  to  be  taken  as  true,  unless  denied  under  oath.48 

This  rule  applies  to  the  denial  of  the  execution  of  the  instrument 
only,  and  not  to  a  denial  of  the  authority  of  the  person  by  whom 

48  Walker  v.  West  Pub.  Co.,  55  Okl.  221,  154  P.  1189. 

46  St.  Paul  Fire  &  Marine  Ins.  Co.,  of  St.  Paul,  Minn.,  v.  Earl,  54  Okl.  305, 
153  P.  867. 

47  Rev.  Laws  1910,  §  4762. 

Though  a  positive  affidavit  to  the  correctness  of  an  account  is  necessary,  in 
order  that  it  may  be  regarded  as  duly  verified,  denial  thereof  is  sufficient,  if 
supported  by  the  oath  of  the  affiant  that  he  believes  it  to  be  true.  Orendorff 
v.  Brown  Bed  Mfg.  Co.,  173  P.  281,  103  Kan.  183,  Rev.  Laws  1910,  §  4762. 

48  Atchison,  T.  &  S.  F.  R.  Co.  v.  Bell,  34  P.  350,  52  Kan.  134;  St.  Louis  &  S. 
F.  R.  Co.  v.  Driggers  (Okl.)  166  P.  703 ;  City  of  Eufaula  v.  Oklahoma  Corrugat- 
ed Steel  &  Iron  Co.  (Okl.)  166  P.  881;    Twist  v.  Colonial  Trust  Co.,  53  Okh  800, 
158  P.  938;  Ince  Nursery  Co.  v.  Sams  (Okl.)  177  P.  370;  Owen  v.  United  States 
Surety  Co.,  38  Okl.  123,  131  P.  1091;  Continental  Ins.  Co.  v.  Pratt,  55  P.  671,  8 
Kan.   App.   424. 

Where  an  instrument  not  required  by  statute  to  be  attached  as  an  exhibit  i>> 
attached  to  a  petition,  and  its  execution  is  alleged  and  its  substance  pleaded, 
its  execution  will  be  taken  as  admitted,  if  not  denied  under  oath  on  trial. 
Long  v.  Shepard,  130  P.  131,  35  Okl.  489. 

In  an  action  on  a  note  by  the  assignee  under  a  written  indorsement  execut- 
ed before  maturity  and  indorsed  on  the  note,  where  a  copy  of  the  note  and 
indorsement  thereon  is  attached  to  the  petition  as  an  exhibit,  and  the  original 
note  and  indorsement  is  introduced  in  evidence  and  the  answer  is  not  verified 
by  defendant's  affidavit,  the  execution  of  the  note  and  the  indorsement  is  ad- 
mitted. Commonwealth  Nat.  Bank  of  Dallas,  Tex.,  v.  Baughman,  111  P.  332, 
27  Okl.  175. 

In  an  action  on  written  contracts  binding  defendant,  among  other  things, 
to  make  an  unconditional  payment  of  money,  an  unverified  answer  leaves  de- 
fendant practically  in  default.  Read  v.  Dodsworth,  147  P.  799,  95  Kan.  117. 

Under  Code  Civ.  Proc.  §  110  (Gen.  St.  1909,  §  5703),  the  omission  to  verify 
the  denial  of  a  statement  in  a  petition  that  owner  of  mortgaged  realty  had 
conveyed  it  to  defendant  by  deed  whereby  grantee  assumed  incumbrauce  was 

(498) 


Art.  5)  ANSWER  §  610 

it  was  executed.49  It  has  been  held  that,  where  the  execution  of  a 
chattel  mortgage  is  properly  alleged  in  a  petition,  and  is  not  denied 
under  oath,  it  is  not  material  error  for  the  court  to  admit  a  copy 
thereof  in  evidence,  though  it  may  not  be  duly  authenticated.50 

The  statute  providing  that  allegations  of  the  execution  of  writ- 
ten instruments  shall  be  taken  as  true  unless  there  is  a  verified 
denial  does  not  preclude  defendant  from  pleading  in  an  unverified 
answer  and  proving  that  he  signed  the  contract,  but  that  his  signa- 
ture was  procured  by  the  fraud  of  plaintiff;51  nor  that  the  mort- 
gage under  which  plaintiff  claims  is  void,  for  the  reason  that  one 
of  the  parties  thereto  was  insane  at  the  time  it  was  executed,52  nor 
does  it  preclude  him  from  establishing  that  the  chattel  mortgage 
sued  on  was  fully  paid  prior  to  the  commencement  of  the  action 
to  replevin  property  therein  named.53 

It  has  been  held  that  the  validity  of  a  tax  deed,  good  upon  its 
face,  may  be  put  in  issue  by  an  unverified  pleading.54  But  where, 
in  an  action  for  a  breach  of  warranty  in  a  deed,  the  petition  sets 
out  that,  at  the  date  of  such  deed,  there  were  outstanding  valid  tax 
certificates  against  the  premises,  that  such  certificates  were  duly 
assigned  and  taxes  paid  thereon,  and  tax  deeds  issued,  and  pur- 
chased by  plaintiff,  an  unverified  general  denial  does  not  put  in 
issue  the  regularity  of  such  tax  proceedings,  but  admits  it.55 

When  the  allegations  of  the  execution  of  a  contract  of  agency 
are  not  denied,  but  the  illegality  of  the  contract  is  pleaded,  a  veri- 
fication is  unnecessary.56 

equivalent  to  an  admission  that  such  deed  was  executed.  McAndrew  v.  Sowell, 
163  P.  653,  100  Kan.  47. 

Verified  answer  held  not  to  join  issue  of  fact  as  to  execution  of  note  and 
mortgage,  so  that  it  was  not  error  to  admit  them  without  first  proving  their 
execution.  Garnett  v.  Storm,  64  Okl.  137,  166  P.  401;  Pine  v.  Western  Nat. 
Bank,  65  P.  690,  63  Kan.  462. 

49  Hilsmeyer  v.  Blake,  125  P.  1129,  34  Okl.  477;  Flesher  v.  Callahan,  122  P. 
489,  32  Okl.  283. 

BO  Handley  v.  Harris,  29  P.  1145,  48  Kan.  606,  30  Am.  St.  Rep.  322,  17  L.  R. 
A.  703. 

si  St.  Louis  Jewelry  Co.  v.  Bennett,  90  P.  246,  75  Kan.  743. 

B2  State  Bank  of  St.  John  v.  Norduff,  43  P.  312,  2  Kan.  App.  55. 

ss  Nutt  v.  Humphrey,  3  P.  787,  32  Kan.  100. 

B*  Curtis  v.  Schmehr,  76  P.  434,  69  Kau.  124. 

5:- Walker  v.  Fleming,  14  P.  470,  37  Kan.  171. 

56  Alexander  v.  Barker,  67  P.  829,  64  Kan.  396. 

Where  a  petition  sets  forth  a.  cause  of  action  upon  a  verbal  contract,  and 
the  answer  denies  the  same,  and  properly  alleges  a  written  contract,  and  the 

(499) 


§   610  PLEADINGS  (Ch.  11 

In  an  action  to  rescind  a  contract  made  under  duress  for  the 
purchase  of  land  and  for  cancellation  of  a  note,  the  issue  of  duress 
and  illegality  of  the  note  raised  by  the  pleadings  and  established 
prima  facie  by  plaintiff's  evidence  makes  a  judgment  for  defendant 
on  his  cross-petition  improper,  although  plaintiff's  answer  there- 
to is  not  verified.57 

Failure  to  deny  the  execution  of  an  administrator's  deed  under 
oath  does  not  admit  the  validity  o£  the  proceedings  on  which  it  is 
based.58  An  allegation  that  a  party  is  the  owner  of  real  property 
under  a  valid  and  legal  deed  of  conveyance  duly  executed  describes 
no  written  instrument  whose  execution  is  to  be  held  admitted  un- 
less denied  under  oath.59 

When  the  answer  alleges  the  execution  of  a  written  contract  con- 
cerning the  matters  in  difference  between  the  parties,  and  no  de- 
nial thereof  is  made  under  oath  by  plaintiff,  the  execution  of  such 
contract  is  admitted,  together  with  all  natural  inferences  to  be 
made  therefrom.00 

Allegations  as  to  the  execution  of  written  instruments  and  in- 
dorsements thereon  are  taken  as  true,  unless  the  denial  is  verified 
by  affidavit.61  Unless  the  indorsements  of  written  instruments 
are  specifically  alleged  in  the  petition,  issues  may  be  raised  there- 
on by  an  unverified  denial.62 

reply  thereto  is  not  verified,  but  contains  an  allegation  that  the  execution  of 
the  written  contract  was  procured  by  fraud  and  misrepresentation,  an  ob- 
jection to  the  introduction  of  evidence,  made  by  the  defendant,  is  properly 
overruled,  as  an  issue  was  raised  by  the  reply.  Missouri  Pac.  Ry.  Co.  v. 
McGrath,  44  P.  39,  3  Kan.  App.  220. 

57  Bushey  v.  Coffman,  173  P.  341,  103  Kan.  209. 

68  Q'Keefe  v.  Behrens,  85  P.  555,  73  Kan.  469,  8  L.  R.  A.  (N.  S.)  354,  9  Ann 
Gas.  867. 

r»Id. 

eo  Chicago,  B.  &  Q.  R.  Co.  v.  Imhoff,  45  P.  627,  3  Kan.  App.  765. 

Where  written  document  is  pleaded  as  defense,  unverified  reply  does  not 
put  in  issue  execution  of  such  instrument,  and  there  is  no  necessity  for  proving 
it  on  trial.  St.  Louis  &  S.  F.  R.  Co.  v.  Driggers  (Okl.)  166  P.  703. 

Under  Rev.  Laws  1910,  §  4759,  allegations  of  the  execution  of  a  written  re- 
lease set  up  in  the  answer  will  be  taken  as  true,  unless  denied  by  verified 
reply.  St.  Louis  &  S.  F.  R.  Co.  v.  Brunei-,  52  LOkl.  349,  152  P.  1103. 

61  J.  I.  Case  Threshing  Mach.  Co.  v.  Rennie  (Okl.)  177  P.  548. 

62  Berry  v.  Oklahoma  State  Bank,  50  Okl.  484,  151  P.  210,  L.  R.  A.  1916A, 
731. 

In  an  action  on  a  guaranty  of  payment  of  a  note  and  interest  coupons  by 
one  other  than  the  payee,  where  the  petition  alleged  that  the  plaintiff  was 

(500) 


Art.  5)  ANSWER  §§  610-611 

Rev.  Laws  1910,  §  4759,  requires  a  specific  allegation,  independ- 
ent of  exhibits,  of  the  indorsements  on  written  instruments,  be- 
fore defendant  is  required  to  deny  same  under  oath. 

An  allegation  of  indorsement  of  bills  of  exchange  is  not  put  in 
issue  by  a  verified  allegation  in  the  answer  denying  that  the  bills 
were  transferred  and  indorsed  to  plaintiff  for  value  before  ma- 
turity.63 There  is  no  presumption  of  want  of  authority  to  indorse 
the  name  of  a  payee  on  a  bill  of  acceptance,  by  means  of  a  rub- 
ber stamp,  where  the  indorsee  suing  thereon  alleges  due  indorse- 
ment ;  such  allegations  being  taken  as  true,  unless  a  denial  there- 
of is  duly  verified.6* 

§  611.     Appointment  or  authority  • 

An  allegation  of  an  agency  in  a  pleading  must  be  taken  as  true 
unless  denied  under  oath;  but,  if  no  objection  is  made  to  the  in- 
troduction of  evidence  to  prove  or  disprove  agency,  then  this  stat- 
utory requirement  is  waived,  and  in  such  a  case  it  is  the  duty  of 
the  court  to  submit  the  issue  of  agency  as  though  the  pleading 
denying  agency  was  verified ; 65  and  failure  to  deny  under  oath  al- 
legations of  the  appointment  or  authority  of  a  public  officer  is  an 
admission  of  the  title  of  the  officer  to  the  office  as  alleged  and  of 
his  power  and  authority  to  perform  the  duties  and  functions  there- 
of.66 

the  owner  and  holder  of  the  note  and  coupons,  but  did  not  allege  the  execu- 
tion of  a  written  indorsement  of  the  same,  an  unverified  general  denial  puts 
the  ownership  of  the  paper  in  issue.  Southern  Kansas  Farm  Loan  &  Trust 
Co.  v.  Barnes,  66  P.  638,  63  Kan.  548. 

es  Metropolitan  Discount  Co.  v.  Davis  (Okl.)  170  P.  707,  7  A.  L.  R.  670. 

e*  Metropolitan  Discount  Co.  v.  Davis  (Okl.)  170  P.  707,  7  A.  L.  R.  670. 

65  Burford  v.  Hughes,  75  Okl.  150,  182  P.  689;  Knudson  v.  Fenimore  (Okl.) 
169  P.  478,  L.  R.  A.  1918C,  18.1;  Ince  Nursery  Co.  v.  Sams  (Okl.)  177  P.  370; 
Hughes  v.  Carlton,  48  P.  444,  5  Kan.  App.  386;  Arkansas  City  Bank  v.  Mc- 
Dowell, 52  P.  56,  7  Kan.  App.  568;  Terry  v.  Anderson,  51  P.  800,  6  Kan.  App. 
921;  Ft.  Smith  &  W.  R.  Co.  v.  Solsherger,  38  Okl.  40,  131  P.  1078;  McCabe  & 
Steen  Const.  Co.  v.  Wilson,  87  P.  320,  17  Okl.  355,  judgment  affirmed  28  S.  Ct. 
558,  209  U.  S.  275,  52  L.  Ed.  788. 

A  general  allegation  of  agency,  when  not  denied  under  oath,  will  be  pre- 
sumed without  proof  to  be  an  agency  with  such  authority  as  is-  charged  in 
the  pleading.  Gaar,  Scott  &  Co.  v.  Rogers,  46  Okl.  67,  148  P.  161. 

ee  City  of  Ardmore  v.  Sayre,  54  Okl.  779,  154  P.  356. 

Under  Rev.  Laws  1910,  §  5427,  an  allegation  of  the  bill  of  particulars  that 
plaintiff  was  employed  by  the  defendant  city  as  "secretary  to  the  mayor"  will 
be  taken  as  true  when  not  denied  by  affidavit.  Oklahoma  City  v.  Saunders, 
46  Okl.  1,  147  P.  1191. 

(501) 


§    611  PLEADINGS  (Ch.  11 

Where  a  petition  avers  that  plaintiff  is  the  duly  appointed,  acting 
guardian  of  certain  minors,  an  unverified  answer  admits  such 
guardianship.67 

In  an  action  by  a  widow  to  recover  for  the  death  of  her  husband, 
who  was  a  resident  of  the  state,  an  allegation  that  no  personal  rep- 
resentative of  his  estate  had  been  appointed  is  put  in  issue  by  the 
unverified  denial,  and  without  proof  of  such  fact  a  demurrer  to 
the  evidence  is  rightfully  sustained;  such  right  to  sue  not  being 
an  "appointment,"1  or  an  "authority."  68  But  a  failure  to  deny  un- 
der oath  an  allegation  of  plaintiff  that  defendant,  through  an  agent, 
did  a  certain  act,  is  not  admission  that  defendant  did  the  act  com- 
plained of.69  Nor  is  an  allegation  in  a  pleading  of  the  nonexist- 
ence  of  authority  to  be  taken  as  true  because  the  denial  of  the  same 
is  not  verified.70 

In  an  action  against  a  corporation  for  personal  injuries  in  being 
struck  by  defendant's  automobile,  allegations  in  the  petition  that 
the  automobile  was  under  the  care  of  defendant's  servant  who  con- 
trolled it,  together  with  defendant's  failure  to  verify  the  answer, 
would  not  constitute  an  admission  of  the  truthfulness  of  the  alle- 
gations of  the  petition.71 

An  allegation  that  one  had  full  authority  to  act  for  himself  is 
not  to  be  taken  as  true  when  not  denied  under  oath.72 

An  allegation  that  plaintiff  is  the  holder  of  the  note  sued  on  may 
be  put  in  issue  by  an  unverified  answer,  where  the  note  does  not 
show  plaintiff's  ownership.73 

6T  Kerr  v.  McKinney  (.Okl.)  170  P.  685;  Tate  v.  Stone,  130  P.  296,  35  OkL 
369. 

es  Vaughn  v.  Kansas  City  N.  W.  R.  Co.,  70  P.  602,  65  Kan.  685. 

69  Leavenworth  Light  &  Heating  Co.  v.  Waller,  70  P.  365,  65  Kan.  514,  re- 
versing judgment  Waller  v.  Leavenworth  Light  &  Heating  Co.,  61  P.  327,  9  Kan. 
App.  301;  Missouri  Pac.  Ry.  Co.  v.  Finley,  16  P.  951,  38  Kan.  550;  Swofford 
Bros.  Dry  Goods  Co.  v.  Berkowitz,  51  P.  796,  7  Kan.  App.  24. 

To.winfield  Land  &  Trust  Co.  v.  Burger,  30  P.  476,  49  Kan.  233;  Atchison,  T, 
&  S..F.  R.  Co.  v.  Walz,  19  P.  787,  40  Kan.  433. 

71  Oklahoma  Automobile  Co.  v.  Benner  (Okl.)  174  P.  567. 

A  petition  in  action  for  injury  by  defendant's  automobile  driven  by  .his 
daughter,  alleging  her  general  authority  to  use  it  for  herself  and  friends,  and 
that  she  was  then  acting  under  such  authority  held  not  to  allege  her  agency, 
so  as  to  require  a  denial  under  oath.  Stafford  v.  Noble,  105  Kan.  219,  182  P. 
650. 

72  Washbon  v.  State  Bank  of  Holton,  121  P.  515,  86  Kan.  468. 

73  Shipman  v.  Porter,  48  Okl.  265,  149  P.  901,  902. 

In  action  on  note  by  one  other  than  the  payee,  where  nothing  appears  by  in- 

(502) 


Art.  5)  ANSWER  §§  611-612 

However,  in  the  payee's  action  against  the  maker,  an  unverified 
answer  admitting  execution  and  delivery  of  the  note  sued  on,  but 
alleging  that  the  payee  is  not  the  owner  and  holder  thereof,  states 
no  defense.7* 

§  612.     Account 

To  relieve  plaintiff  from  proving  an  open  account  as  against  a 
general  denial,  it  is  essential,  not  only  that  a  properly  verified  copy 
of  the  account  be  attached  to  the  petition,  but  that  the  petition  al- 
lege its  correctness.75 

Failure  to  deny  under  oath  a  verified  account  admits  only  its  ac- 
curacy, and  not  its  legality.76 

Defendant  need  not  deny  under  oath  an  unintelligible  verified 
statement  of  account.77 

Where  a  plaintiff  attaches  a  duly  verified  account  to  his  petition, 
but  does  not  specifically  allege  in  the  petition  that  the  account  is 
correct,  the  defendant  is  not  required  to  deny  the  correctness  of 
the  account  under  oath,  but  may  raise  the  issue  by  a  general  de- 
nial.78 The  statute  requires,  not  only  that  a  verified  account  be 


dorsement,  etc.,  to  indicate  the  ownership  of  the  note,  an  allegation  that  plain- 
tiff is  the  owner  and  holder  may  be  put  in  issue  Jt>y  an  unverified  answer. 
Southwest  General  Electric  Co.  v.  Eiddle  (Okl.)  168  P.  436. 
7*  Burling  v.  Stinnett,  46  Okl.  159,  148  P.  140. 

75  El  Reno  Vitrified  Brick  &  Tile  Co.  v.  C.  W.  Raymond  Co.,  46  Okl.  3S8,  148 
P.  1000. 

The  petition  must  allege  the  correctness  of  the  verified  account  attached. 
A  verification  of  the  petition  which  includes  a  statement  of  the  account  is 
not  sufficient.  Myers  v.  First  Presbyterian  Church  of  Perry,  69  P.  874,  11  Okl. 
544. 

Where  there  is  no  allegation  in  a  pleading  of  the  correctness  of  a  verified 
account  attached  thereto,  there  can  be  no  denial  thereof,  and  the  account  is  at 
issue  under  the  general  denial.  Haldeman  v.  Johnson,  54  P.  507,  8  Kan.  App. 
473. 

76  Hill  v.  Board  of  Com'rs  of  Republic  County,  160  P.  9S7,  99  Kan.  49. 
Under  Gen.  St.  1889,  par.  4191,  which  provides  that  "in  all  actions  allega: 

tions  of  *  *  *  the  correctness  of  any  account  duly  verified  *  *  * 
ehall  be  taken  as  true,  unless  the  denial  of  the  same  be  verified,"  etc.,  it  is 
not  necessary  that  an  answer  should  be  verified  in  order  to  raise  the 
issue  of  the  maturity  of  the  account;  and,  where  its  correctness  is  not  de- 
nied, evidence  may  be  introduced  to  show  it  is  not  due,  though  the  petition 
is  verified,  and  the  answer  is  not.  Johnston  v.  Johnson,  44  Kan.  666,  24  P. 
1098. 

77  Continental  Gin  Co.  v.  Sullivan,  48  Okl.  332,  150  P.  209. 

78  Miners'  Supply  Co.  v.  Chesnutt-Gibbons  Grocer  Co.,  50  Okl.  151,  150  P.  686. 

(503) 


§§  612-613  PLEADINGS  (Ch.  11 

attached  to  a  petition,  but  that  the  petition  specifically  allege  its 
correctness  before  defendant  is  required  to  deny  it  under  oath, 
otherwise  a  general  denial  is  sufficient.79 

An  answer  which  does  not  question  the  correctness  of  a  verified 
account  as  set  forth  in  the  petition,  but  which  sets  up  an  affirma- 
tive defense,  need  not  be  verified.80 

§  613.     Corporation  and  partnership 

"In  all  civil  actions  brought  by  or  against  a  corporation,  it  shall 
not  be  necessary  to  prove  on  the  trial  of  the  cause  the  existence 
of  such  corporation,  unless  the  defendant  shall  in  his  answer  ex- 
pressly aver  under  oath  that  the  plaintiff  or  defendant  is  not  a 
corporation."  81 

79  Id. 

The  correctness  of  plaintiff's  account  is  not  admitted  by  defendant's  failure 
to  deny  it  under  oath  when  the  petition  contains  no  allegation  of  its  correct- 
ness, though  a  verified  account  is  attached  to  the  petition.  Dewey  v.  Burton, 
46  P.  321,  4  Kan.  App.  582. 

Under  Wilson's  Rev.  &  Ann.  St.  1903,  §  4312,  providing  that,  where  the 
correctness  of  accounts  is  duly  verified,  it  shall  be  taken  as  true  unless  the 
denial  is  verified,  where  the  verification  of  an  account  contains  no  allegation 
of  its  correctness,  it  does  not  require  the  answer  to  be  verified.  Sawyer  &  Aus- 
tin Lumber  Co.  v.  Champlain  Lumber  Co.,  84  P.  1093,  16  Okl.  90. 

Under  Civ.  Code,  §  108,  providing  that  the  correctness  of  an  account  verified 
by  affidavit  of  the  party  or  -his  attorney  shall  be  taken  as  true,  unless  the 
denial  of  the  same  be  verified  in  a  similar  manner,  the  correctness  of  an  ac- 
count set  up_by  defendant  as  a  counterclaim  is  not  admitted  by  the  failure  of 
plaintiff  to  deny  the  same  under  oath,  when  the  correctness  thereof  is  not  al- 
leged in  the  answer.  McMath  v.  Beal,  45  P.  1103,  4  Kan.  App.  565. 

A  verified  counterclaim  by  defendant  in  trespass  alleged  that  defendant  was 
to  have  one-half  the  crops  raised  by  plaintiff  on  the  premises,  and  that  plain- 
tiff converted  the  whole  of  such  crops  to  his  own  use.  The  amount  of  the 
crops  which  defendant  would  have  received  was  itemized.  Held,  that  the 
counterclaim  was  not  a  statement  of  account,  to  be  taken  as  true  unless  the 
denial  thereof  was  verified.  Kauter  v.  Fritz,  47  P.  187,  5  Kan.  App.  756. 
.  so  Sawyer  &  Austin  Lumber  Co.  v.  Champlain  Lumber  Co.,  16  Okl.  90,  84  P. 
1093. 

The  fact  that  a  verified  account  sued  on  is  not  denied  by  a  verified  affida- 
vit does  not  preclude  defendant  J rom  interposing  any  defense  pleaded  which 
does  not  involve  a  denial  of  the  reasonableness  of  the  amounts  'charged  or 
the  correctness  of  the  items;  but  defendant  may  show  that  plaintiff  agreed 
to  charge  nothing  for  the  work,  or  that  the  account  was  paid.  Lucas  v.  Board 
of  Com'rs  of  Ford  County,  73  P.  56,  67  Kan.  418. 

si  Rev.  Laws  1910,  §  12SO. 

Unless  it  is  alleged  in  the  answer  under  oath  that  plaintiff  is  not  a  corpora- 
tion, plaintiff  need  not  prove  that  it  is  a  corporation.  Marshall  Mfg.  Co.  v. 

(504) 


Art.  5)  ANSWER  §§  613-615 

"Whenever  any  suit  shall  be  instituted  by  an  incorporated  town 
it  shall  not  be  required  to  show  its  compliance  with  any  of  the 
provisions  of  law  as  to  its  organization  or  publication  of  by-laws 
or  ordinances,  unless  the  same  is  controverted  by  affidavit."  82' 

Where  the  petition  alleges  that  a  third  person  wa?  the  agent  of 
defendant,  and  such  allegation  is  not  denied,  it  will  be  treated  as 
admitted.83 

Where  petition  alleges  sale  of  goods  to  defendants  as  partners, 
one  defendant's  denial  under  oath  that  she  owed  plaintiff  anything, 
and  of  existence  of  partnership,  admits  correctness  of  account,  but 
not  her  indebtedness  thereon,  and,  to  recover,  plaintiff  will  be  re- 
quired to  show  either  a  personal  or  partnership  liability.84 

An  unverified  denial  of  an  allegation  of  existence  of  a  partner- 
ship is  ineffectual,  and  presents  no  defense  to  an  action  against 

such  partnership.86 

• 

§  614.     Waiver 

The  provision  that  allegation  of  indorsement  on  written  instru- 
ments, not  met  by  a  verified  denial,  shall  be  taken  as  true,  may  be 
waived  by  the  pleader's  introducing  evidence  thereon.89 

§  615.-    Forms 

GENERAL  DENIAL- — VERIFIED  DENIAL  OF  NOTE  SUED  ON 

(Caption.) 

Comes  now  the  said  defendant,  G.  H.  &  Co.,  a  corporation,  and 
files  its  answer  to  the  petition  of  plaintiffs  filed  herein,  and  states : 

1.  The  defendant,  answering  the  first  alleged  cause  of  action 
set  forth  in  the  petition  herein,  denies  each  and  every  allegation 


Dickerson,  65  Okl.  188,  155  P.  224;  First  Nat.  Bank  of  Tishomingo  v.  Latham, 
132  P.  891,  37  Okl.  286. 

82  Rev.  Laws  1910,  §  676. 

ss  j.  j.  Case  Threshing  Mach.  Co.  v.  Mbsley  (Okl.)  173  P.  208. 

s*  Watson-Durand-Kasper  Grocery  Co.  v.  Scheetz,  163  P.  168,  99  Kan.  772. 

ss  Miles  v.  Grosman  Co.  (Okl.)  173  P.  808. 

se  Spaulding  v.  Thompson,  60  Old.  136,  159  P.  509. 

Verification  of  the  answer  in  an  action  on  a  written  instrument  is  waived, 
notwithstanding  Code  Civ.  Proc.  §  110  (Gen.  St.  1909,  §  5703),  where  plaintiff 
joins  issue,  introduces  evidence  contradicting  the  defense,  and  asks  instruc- 
tions relative  thereto.  Emery  v.  Bennett,  155  P.  1075,  97  Kan.  490,  Ann.  Cas. 
1918D,  437. 

(505) 


§    615  PLEADINGS  (Cll.  11 

therein  contained,  except  such  as  are  hereinafter  specifically  ad- 
mitted. 

2.  The  said  defendant  admits  that  it  is  a  corporation  organized, 
existing,  and  doing  business  under  and  by  virtue  of  the  laws  of 
the  state  of  Oklahoma. 

3.  The  defendant,  answering  the  second  alleged  cause  of  action 
set  forth  in  the  petition  herein,  denies  each  and  every  allegation 
therein  contained,  except  such  as  are  hereinbefore  specifically  ad- 
mitted. 

4.  Further  answering  the  second  alleged  cause  of  action   set 
forth  in  the  petition  herein,  defendant  specifically  denies  that  it 
made,  executed,  or  delivered  the  promissory  note  and  mortgage  al- 
leged in  said  second  alleged  cause  of  action,  or  that  the  authorized 
agent  of  defendant  made,  executed  and  delivered  the  same. 

(Signature)  Attorney  for  Defendant. 
State  of  Oklahoma,  ] 


County  of 

X.  Y.,  being  first  duly  sworn,  says :  That  he  is  an  officer,  to  wit, 
the  president,  of  the  defendant  corporation;  that  he  has  read  the 
foregoing  answer  and  knows  the  contents  thereof;  and  that  the 
same  is  true  of  his  own  knowledge. 

(Signature.) 

Subscribed  and  sworn  to  before  me  this  day  of  , 

19—. 

(Seal.)  (Signature)  Notary  Public. 

My  commission  expires ,  19 — . 

VERIFIED  DENIAL  OF  THE  CORRECTNESS  OF  THE  ACCOUNT  SUED  ON 

(Caption.) 

Comes  now  the  said  defendant,  E.  F.,  and  for  his  answer  to  the 
petition  of  plaintiff  filed  herein  denies  each  and  every  allegation 
therein  contained,  and  specifically  denies  the  correctness  of  the 
verified  account  sued  on, 

(Signature)  Attorney  for  Defendant. 
State  of  Oklahoma, 


County  of 

-,  being  first  duly  sworn,  states:    That  he  is  the  defendant 
(or  attorney  or  agent  for  the  defendant^  in  the  above  entitled  ac- 
(506) 


Art.  5)  ANSWER  §§  615-617 

tion,  and  that  the  above  and  foregoing  statements  in  denial  are 
true.  (Signature.) 

Subscribed  and  sworn  to  before  me  this  day  of , 

19—.  . 

(Seal.)  (Signature)  Notary  Public. 

My  commission  expires  ,  19 — . 

DIVISION  IV. — COUNTERCLAIM  AND  SET-OFF 

§  616.     Counterclaim — Nature — Right  to  interpose — Set-off — Lim- 
itations 

"The  counterclaim  mentioned  in  the  last  section  must  be  one 
existing  in  favor  of  a  defendant  and  against  a  plaintiff,  between 
whom  a  several  judgment  might  be  had  in  the  action,  and  arising 
out  of  the  contract  or  transaction  set  forth  in  the  petition  as  the 
foundation  of  the  plaintiff's  claim  or  connected  with  the  subject  of 
the  action  or  on  account  of  a  wrongful  attachment  or  garnishment 
issued  and  levied  in  said  action  after  the  same  has  been  set  aside. 
The  right  to  relief  concerning  the  subject  of  the  action  mentioned 
in  the  same  section  must  be  a  right  to  relief  necessarily  or  properly 
involved  in  the  action  for  a  complete  determination  thereof,  or  set- 
tlement of  the  question  involved  therein.  Provided,  that  either 
party  can  plead  and  prove  a  set-off  or  counterclaim  of  the  proper 
nature,  in  defense  of  the  liability  sought  to  be  enforced  by  the  other 
party,  and  it  shall  not  be  necessary  that  such  set-off  shall  exist  as 
between  all  parties  plaintiff  and  defendant  in  such  suit,  but  any 
party  may  enforce  his  set-off  or  counterclaim  against  the  liability 
sought  to  be  enforced  against  him.  Such  set-off  or  counterclaim 
shall  not  be  barred  by  the  statutes  of  limitations  until  the  claim  of 
the  plaintiff  is  so  barred."  87 

§  617.     Set-off — Right  to  interpose 

"A  set-off  can  only  be  pleaded  in  an  action  founded  on  contract, 
and  must  be  a  cause  of  action  arising  upon  contract  or  ascertained 
by  the  decision  of  a  court."  88 

ST  Eev.  Laws  1910,  §  4746. 

ss  Rev.  Laws  1910,  §  4747. 

.  Contract  and  tort. — In  an  action  on  a  contract  defendant  may  set  off  or 
plead  as  a  defense  thereto  any  claim  arising  to  him  by  virtue  of  any  contract 
with  plaintiff.  Mowatt  v.  Shidler  (Okl.)  168  P.  1169.  In  suit  for  price  of 

(507) 


§    617  PLEADINGS  (Ch.  11 

While  the  principal  debtor  may  set  ©ff  a  debt  due  from  the  maker 
to  him  in  an  action  against  him  and  his  surety  jointly,  his  surety 

cannot  do  so  on  his  own  motion,  unless  he  shows  the  insolvency  of 

• 

land  and  to  establish  a  vendor's  lien,  where  defendant  pleaded  as  a  set-off  an 
indebtedness  from  plaintiff,  evidenced  by  a  note  and  account,  instruction  that 
he  could  not  set  it  off  unless  there  was  an  agreement  that  debt  should  be  set 
off  as  part  of  consideration  for  property,  held  error.  Id. 

In  an  action  on  a  note  given  for  the  price  of  machinery,  where  the  property 
was  returned  under  the  contract,  defendant  Was  entitled  to  a  credit  for  the 
reasonable  value  of  the  property  when  it  was  returned  to  plaintiff.  Wade  v. 
Ray,  139  P.  116,  41  Okl.  641. 

A  claim  on  an  implied  contract  is  not  allowable  to  defendant  as  a  set-off 
in  an  action  sounding  in  tort.  Nation  v.  Planters'  &  Mechanics'  Bank,  119 
P.  977,  29  Okl.  819. 

Where  plaintiff  states  such  facts  as  are  necessary  to  sustain  an  action  to 
recover  chattels  on  the  implied  contract,  and  none  showing  a  purpose  to  rely 
on  the  tort,  except  in  using  the  words,  "did  convert  the  same  to  her  own  use 
and  benefit,"  and  alleges  that  he  is  the  owner,  the  character  of  ownership, 
the  taking  of  the  chattels  for  defendant's  benefit,  and  their  value,  a  demand 
for  the  value,  a  refusal,  and  a  prayer  for  recovery  of  the  alleged  value,  there 
being  no  specific  allegation  of  fraud,  wrong,  or  injury  to  plaintiff  by  reason 
of  the  tort,  but  the  amount  claimed  being  confined  to  the  alleged  value,  de- 
fendant may  treat  the  action  as  ex  contractu,  and  where  defendant  pleads 
set-off,  and  plaintiff  replies,  evidence  of  set-off  is  properly  admitted.  Smith 
v.  McCarthy,  18  P.  204,  39  Kan.  308. 

A  railroad  company  sued  its  former  treasurer  for  moneys  alleged  to  be- 
long to  the  company,  and  to  have  been  received  by  him  as  treasurer,  and 
wrongfully  appropriated  by  him  to  his  own  use.  It  appeared  that  he  appro- 
priated the  same  in  payment  of  certain  claims  which  he  held  against  the  com- 
pany, the  claims  being  founded  on  contract.  Held,  that  he  might  set  off  such 
claims  against  the  claim  of  the  railroad  company  so  far  as  they  were  legal 
and  valid.  St.  Louis,  Ft.  S.  &  W.  R.  Co.  v.  Chenault,  12  P.  303,  36  Kan.  51. 

Damages  arising  out  of  an  actionable  tort  in  a  land  trade  cannot  be  set  off 
or  counterclaimed  in  an  action  on  a  contract  which  was  distinct  from  the 
transaction  in  which  the  tort  was  committed.  Hazlett  v.  Wilkin,  140  P.  410, 
42  Okl.  20. 

A  cause  of  action  accruing  to  defendant  for  damages  resulting  from  a  con- 
spiracy between  plaintiff  and  another  to  bring  an  unjustifiable  suit  against 
him,  and  the  bringing  of  such  suit  in  pursuance  of  the  conspiracy,  cannot  be 
set  up  as  a  counterclaim  in  answer  to  plaintiff's  demand,  as  it  does  not  arise 
out  of  the  contract  which  is  the  foundation  of  plaintiff's  claim.  First  Nat. 
Bank  v.  Hasie,  48  P.  22,  57  Kan.  754. 

Waiver  of  tort. — In  an  action  on  a  note  by  the  payee,  the  maker,  who 

alleges  that  his  employs  owns  the  real  interest  4n  the  note,  may  set  off  a  claim 
against  such  employe  for  goods  embezzled  by  the  latter,  such  claim  being  one 
on  implied  contract,  since  the  employer  could  waive  the  tort  and  sue  the  agent 
on  contract.  Challiss  v.  Wylie,  11  P.  438,  35  Kan.  506. 

A  railroad  company  sued  its  former  treasurer  for  moneys  alleged  to  belong 
to  the  company,  and  to  have  been  received  by  him  as  treasurer,  and  wrong- 

(508) 


Art.  5)  ANSWER  §  618 

his  principal  and  his  inability  to  obtain  relief  either  in  an  action 
against  him  or  as  a  defense  to  an  action  on  the  note.89 

§  618.     Defined  and  distinguished — Statute  applied 

A  counterclaim  is  a  cause  of  action  existing  in  favor  of  a  defend- 
ant and  against  a  plaintiff,  between  whom  a  several  judgment 
might  be  had  in  the  action,  and  arising  out  of  the  contract  or  trans- 
action set  forth  in  the  petition  as  the  foundation  of  plaintiff's  claim, 
or  connected  with  the  subject  of  the  action.90 

A  set-off  is  a  cause  of  action  arising  upon  contract  or  ascertained 
by 'the  decision  of  a  court,  and  can  only  be  pleaded  in  an  action 
founded  on  contract.  It  must  be  independent  of,  and  not  connected 
with,  the  contract  made  the  foundation  of  the  cause  of  action  in  the 
petition,  and  can  only  be  pleaded  where  there  is  mutuality  of  par- 
ties. The  cause  of  action  sought  to  be  pleaded  as  a  set-off  must 
exist  in  favor  of  all  the  defendants  against  the  plaintiff.91 

fully  appropriated  by  him  fully  delayed  a  train,  for  the  purpose  of  injuring 
it,  was  founded  on  contract;  nor  could  the  company  waive  the  torts  for  the 
purpose  of  recovering  as  for  breach  of  contracts.  Atchison,  T.  &  S.  F.  R.  Co. 
v.  Phelps,  46  P.  183,  4  Kan.  App.  139. 

as  Willoughby  v.  Ball,  90  P.  1017,  18  Okl.  535. 

so  Richardson  v.  Penny,  61  P.  584,  10  Okl.  32. 

9i  Id. 

Counterclaim,. — A  "counterclaim"  is  the  claim  of  a  defendant  to  recover 
from  a  plaintiff  by  setting  up  and  establishing  any  cross-demand  which  may 
exist  in  his  favor  as  against  plaintiff.  Drovers'  State  Bank  v.  Elliott,  154  P. 
255,  97  Kan.  64. 

Defendant  may  prove  counterclaim  arising  out  of  contract  or  transaction 
alleged  as  foundation  of  claim,  or  connected  with  subject  of  action.  Cooper 
v.  Gibson  (Okl.)  170  P.  220. 

A  counterclaim  need  not  simply  defeat  plaintiff's  recovery  or  reduce  the 
amount  thereof,  but,  is  something  of  a  legal  or  equitable  nature  arising  out  of 
the  contracts  or  transactions  set  forth  in  the  petition  giving  defendant  a  right 
to  relief  necessarily  or  properly  involved  in  a  complete  determination  of  the 
action.  Hodge  v.  Bishop,  151  P.  1105,  96  Kan.  419. 

In  an  action  on  a  contract,  defendant  may  plead  as  a  counterclaim  any 
cause  of  action  arising  on  contract  which  he  may  have  against  plaintiff.  Orr 
v.  Gerrold,  57  P.  48,  8  Kan.  App.  441. 

A  counterclaim  secures  to  defendant  full  relief,  which  a  separate  action  at 
law  or  a  bill  in  chancery  or  a  cross-bill  would  have  secured  for  him  on  an 
allegation  and  proof  of  the  facts,  but  relates  only  to  such  causes  of  action  as 
exist  against  plaintiff  and  which  might  be  basis  of  an  action  against  him  by 
defendant.  Mathews  v.  Sniggs,  75  Okl.  108,  182  P.  703. 

It  is  not  necessary  that  a  counterclaim  should  be  founded  in  or  arise  out  of 
the  contract  set  forth  in  the  petition;  it  being  sufficient  if  it  arises  out  of 

(509) 


§    618  PLEADINGS  (Ch.  11 

the  transaction  set  forth  in  the  petition,  or  is  connected  with  the  subject  of 
the  action.  Wyman  v.  Herard,  59  P.  1009,  9  Okl.  35. 

In  an  action  for  plastering  a  house,  where  defendant  pleaded  a  counter- 
claim, alleging  damages  on  account  of  plaintiff's  unskillful  workmanship  in 
constructing  a  foundation  for  the  house,  it  must  be  shown  by  defendant  that 
the  contract  for  building  such  foundation  was  a  part  of  the  same  contract  or 
transaction  under  which  the  plastering  of  the  house  was  done.  Allison  v. 
Shinner,  54  P.  471,  7  Okl.  272. 

The  answer,  in  an  action  for  rent,  held  to  present  a  proper  counterclaim, 
where  it  asked  that  defendant's  wife  be  made  a  party  and  be  adjudged  to 
have  an  equitable  title  to  the  land,  and  that  plaintiff  be  required  to  carry  out 
the  contract  in  which  the  title  originated.  Hodge  v.  Bishop,  151  P.  1105,  96 
Kan.  419. 

In  action  on  building  contract,  defendant  may  elect  to  counterclaim  against 
contractor  for  damages  from  failure  to  perform  contract,  instead  of  defend- 
ing against  any  recovery  because  of  such  failure  to  perform.  Brown  v.  Tull 
(Okl.)  164  P.  785. 

A  chattel  mortgagor  may  counterclaim,  in  replevin  to  recover  the  goods  un- 
der the  mortgage  securing  the  purchase  p^rice,  for  damages  for  fraud  in  the 
sale.  Miller  v.  Thayer,  150  P.  537,  96  Kan.  278. 

Where  the  answer  of  defendant  in  ejectment  alleged  that  he  had  a  lease 
for  a  term  of  years,  and  that  plaintiff  was  in  unlawful  possession  and  un- 
lawfully withholding  the  premises  from  defendant,  and  prayed  judgment  for 
possession  and  for  damages,  that  part  of  the  answer  claiming  interest  in  the 
land  and  asking  affirmative  relief  was  a  counterclaim.  Long  v.  Bagwell,  38 
Okl.  312,  133  P.  50. 

Where  a  plaintiff  files  a  petition  in  ejectment,  and  defendant  in  his  answer, 
in  addition  to  a  general  denial,  states  he  is  in  possession  of  the  same  land,  and 
claims  to  be  the  owner  thereof  by  virtue  of  a  tax  deed,  and  asks  that  his  title 
thereto  may  be  quieted  against  plaintiff,  that  part  of  his  answer  claiming  title 
in  himself,  and  asking  affirmative  relief,  is  a  counterclaim,  within  Code,  §  95, 
defining  a  counterclaim  as>  a  demand  existing  in  favor  of  defendant  and 
against  plaintiff  arising  out  of  the  transaction  sued  on.  Venable  v.  Dutch,  15 
P.  520,  37  Kan.  515,  1  Am.  St.  Rep.  260. 

A  mortgagor  may,  in  replevin  by  the  mortgagee,  plead  as  a  counterclaim 
the  breach  of  a  contract  by  the  mortgagee  to  buy  the  goods  and  pay  the  dif- 
ference between  the  amount  of  the  mortgage  and  the  agreed  price  of  the  goods. 
Deford  v.  Hutchison,  25  P.  641,  45  Kan.  318,  11  L.  R.  A.  257,  judgment  modi- 
fied, 26  P.  60,  45  Kan.  332. 

In  an  action  to  recover  damages  for  the  removal  of  a  house  from  real  es- 
tate upon  which  plaintiff  claimed  a  mortgage,  defendants  answered  by  a 
general  denial,  and  set  up  a  counterclaim,  alleging  that  they  had  been  pre- 
vented from  making  a  loan  by  reason  of  the  bringing  of  such  action,  and  had 
been  thereby  damaged.  Plaintiff  failed  to  reply  or  appear,  and  the  court  ren- 
dered judgment  in  favor  of  defendants  upon  such  answer.  Held  error,  as 
the  answer  did  not  set  up  facts  sufficient  to  constitute  a  counterclaim,  the  facts 
having  arisen,  not  from  the  same  transaction  involved  in  the  action,  but  from 
the  bringing  of  the  action.  Kansas  Loan  &  Investment  Co.  v.  Hutto,  29  P. 
558,  48  Kan.  166. 

In  an  action  by  a  mortgagee  against  the  mortgagor  for  possession  of  a 
traction  engine  and  other  chattels,  the  mortgagor  cannot  recover  on  a  coun- 

(510) 


Art.  5)  ANSWER  §  619 

§  619.     Subsisting  right 

The  validity  of  a  counterclaim  or  set-off  is  determined  by  whether 
it  would  constitute  a  cause  of  action  by  defendant  against  plaintiff, 
had  plaintiff  not  sued.92 

terclaini  for  damages  resulting  from  failure  of  the  mortgagee  to  deliver  the 
engine  at  the  time  agreed  upon,  where  the  mortgage  and  the  notes  secured 
thereby  were  given  by  the  mortgagor  after  the  delivery  of  the  engine  for 
which  the  same  were  executed,  without  objection  on  account  of  the  delay  in 
its  delivery.  Frick  Co.  v.  Stephens,  53  P.  378,  7  Kan.  App.  745. 

In  suit  on  supersedeas  bond,  defendant's  damages  from  an  unlawful  at- 
tachment in  the  action  in  which  bond  was  executed  were  not  proper  subject 
for  counterclaim  within  Rev.  Laws  1910,  §  4746.  Brisley  v.  Mahaffey,  64  Okl. 
319,  167  P.  984. 

Under  Rev.  St.  1910,  §  4746,  limiting  the  use  of  a  counterclaim,  a  note  from 
plaintiff  to  a  stranger  to  the  suit,  and  assigned  to  defendant,  cannot  be  used 
as  a  counterclaim  where  it  is  in  no  way  connected  with,  and  has  no  relation 
to,  the  contract  or  transaction  made  the  basis  of  plaintiff's  suit.  First  Nat. 
Bank  v.  Thompson,  137  P.  668,  41  Okl.  88. 

In  an  action  for  installing  a  plumbing  system  and  for  extras  held  that  mat- 
ter arising  out  of  a  contract,  distinct  from  that  sued  on,  did  not  constitute  a 
proper  counterclaim  under  Rev.  Laws  1910.  §§  4745,  4746.  Harris  V.  Warren- 
Smith  Hardware  Co.,  44  Okl.  477,  144  P.  1050. 

Under  Rev.  Laws  1910,  §  4746,  plaintiff  cannot  plead  as  counterclaim  in  ac- 
tion on  notes  unliquidated  damages  from  unlawful  suing  out  of  attachment  in 
former  suit  in  settlement  of  which  notes  were  executed.  Phillips  v.  Har- 
gadine-McKittrick  Dry  Goods  Co.,  59  Okl.  294,  159  P.  320. 

S&t-off. — A  "set-off"  is  a  demand  which  a  defendant  makes  against  the 
plaintiff  in  a  suit  to  liquidate  the  whole  or  a  part  of  his  claim.  Drovers'  State 
Bank  v.  Elliott,  154  P.  255,  97  Kan.  64. 

Where  a  person  agrees  on  certain  conditions  to  be  performed  by  a  bank  to 
indorse  all  notes  held  by  the  bank,  to  55  per  cent,  thereof,  and  makes  a  spe- 
cial deposit  in  the  bank  to  secure  performance,  he  is  entitled,  on  failure  of 
the  bank  to  comply  with  the  conditions,  to  any  part  of  such  deposit  which  has 
not  been  properly  applied  under  the  agreement,  and  may  set  off  same  in  an 
action  against  him  by  the  bank  on  a  note.  First  State  Bank  of  Indiahoma  v. 
Menasco,  55  Okl.  748,  155  P.  261. 

Under  the  statute  limiting  the  use  of  a  set-off  (Rev.  St.  1910,  §  4746),  a  de- 
fendant, in  an  action  for  conversion,  cannot  set  off  a  note  given  by  plaintiff 
to  a  stranger  to  the  suit,  and  assigned  to  him.  First  Nat.  Bank  v.  Thomp- 
son, 137  P.  668,  41  Okl.  88. 

In  an  action  on  a  contract,  a  defendant  may  plead  as  a  set-off  any  cause 
of  action  arising  on  contract  which  he  may  have  against  plaintiff.  Orr  v. 
Gerrold,  57  P.  48,  8  Kan.  App.  441. 

In  an  action  on  a  note,  held  permissible  to  set  up  a  cross-demand  for  dam- 
ages for  the  wrongful  taking  and  injury  by  plaintiff  of  a  horse  belonging  to 
defendants.  Ontjes  v.  Rhodenbaugh,  132  P.  211,  89  Kan.  533. 

92  Johnson  v.  Acme  Harvesting  Mach.  Co.,  103  P.  638,  24  Okl.  468. 

(511) 


§§  619-620  PLEADINGS  (Ch.  11 

There  must  be  a  subsisting  right  in  defendant.98 
An  unadjudicated  sum  due  on  open  account  cannot  be  set  off 
against  a  judgment.94 

§  620.     Equity 

Equity  can  allow  a  set-off  of  debts  independently  of  statute  where 
grounds  of  equitable  interposition  are  shown,  such  as  fraud,  insol- 
vency, or  nonresidence,  rendering  it  probable  that  party  will  lose 
his  demand  and  be  compelled  to  pay  other  demand.95 

A  counterclaim  may  likewise  be  allowed.96 

os  in  a  purchaser's  action  against  real  estate  brokers  for  purchase  money 
paid  for  land  which  proved  deficient  in  quantity,  the  brokers  could  not  offset 
a  sum  paid  by  them  to  an  occupant  of  the  premises  to  place  themselves  in  po- 
sition to  deliver  possession,  where  such  payment  was  made,  not  for  plaintiff's 
benefit,  but  to  secure  the  profit  they  expected  to  make  on  the  transaction.  Hur- 
ford  v.  Norvall,  39  Okl.  496,  135  P.  1060. 

In  a  carrier's  action  to  recover  an  undercharge,  held,  that  a  set-off  could  not 
be  allowed  for  damages  on  another  shipment,  where  such  other  shipment  was 
made  under  a  contract  prescribing  conditions  precedent  to  the  allowance  of 
damages,  and  such  conditions  had  been  disregarded.  Chicago,  R.  I.  &  P.  Ry. 
Co.  v.  Theis,  152  P.  619,  96  Kan.  494. 

Where  a  defendant  did  not  intend  to  charge  the  plaintiff  anything  for  va- 
rious items  when  they  were  furnished,  and  so  testified,  he  cannot  after  an  ac- 
tion has  been  commenced,  make  charges  for  them,  and  recover  thereon.  Col- 
lins v.  Martin,  23  P.  95,  43  Kan.  182. 

In  an  action  on  an  order  to  let  F.  have  meat  from  the  1st  of  May  until  fur- 
ther orders,  an  item  of  $63.25  which  one  of  plaintiffs,  on  cross-examination, 
admits  was  for  meat  sold  to  F.'s  husband  before  the  1st  of  May,  should  not 
be  offset  against  a  bill  which  plaintiffs  owe  defendant.  McNeely  v.  Duff,  31 
P.  1061,  50  Kan.  488. 

»4  Colcord  v.  Conger,  62  P.  276,  10  Okl.  458. 

95  Caldwell  v.  Stevens,  64  Okl.  287,  167  P.  610,  I>.  R.  A.  1918B,  421. 

Equity  may  allow  set-offs  of  mutual  demands  where  such  relief  is  necessary 
to  enable  party  claiming  it  to  collect  his  claims,  and,  where  other  equitable 
grounds  exist,  the  insolvency  of  the  party  against  whom  the  relief  is  sought 
will  authorize  such  equitable  remedy.  Scrivner  v.  McClelland,  75  Okl.  239, 
182  P.  503. 

In  suit  to  recover  upon  notes  and  to  foreclose  mortgage  on  realty,  fourth 
paragraph  of  defendant's  answer  held  to  state  facts  sufficient  for  exercise  of 
jurisdiction  in  equity  to  decree  set-off.  Caldwell  v.  Stevens,  64  Okl.  287,  167 
P.  610,  L.  R.  A.  1918B,  421. 

as  In  action  to  restrain  unfair  competition,  a  counterclaim  for  damages  for 
plaintiff's  unlawful  use  of  defendant's  trade-name  and  seeking  an  injunction 
is  proper,  and,  if  the  allegations  thereof  are  sustained,  defendant  is  entitled 
to  the  relief.  O  K  Bus  &  Baggage  Co.  v.  O  K  Transfer  &  Storage  Co.,  63  Okl. 
311,  165  P.  136,  L.  R.  A.  1918A,  956. 

(512) 


Art.  5)  ANSWER  §§  620-621 

In  an  action  by  the  trustee  of  a  trust  mortgage  to  recover  the 
value  of  certain  trust  property  sold  to  defendant,  a  holder  by  as- 
signment of  a  note  secured  by  the  mortgage,  a  counterclaim  may  be 
properly  pleaded,  asserting  an  interest  in  the  application  of  the  pro- 
ceeds of  mortgaged  property,  and  asking  an  accounting.97 

In  an  action  to  recover  money  defendant  cannot  avail  himself  of 
an  equitable  counterclaim  involving  the  foreclosure  of  a  mortgage 
and  the  sale  of  the  real  estate  described  therein,  which  the  court 
has  no  power  to  hear,  because  the  premises  described  in  the  mort- 
gage are  situated  in  another  county,  and  beyond  the  jurisdiction  of 
the  court  where  such  counterclaim  is  filed.98 

§  621.    Cross-bill  or  cross-petition 

In  foreclosure  the  defendant  cannot  by  cross-bill  set  up  new  mat- 
ter not  maintainable  as  a  counterclaim,  unless  such  matter  is  in- 
volved in  a  proper  determination  of  the  subject-matter  of  the  origi- 
nal suit.99 

A  cause  of  action  set  up  in  a  cross-bill  against  a  party  made  co- 
defendant  on  motion  of  original  defendant  must  be  germane  to  orig- 
inal controversy,  and  a  cross-bill  wherein  such  defendant  seeks  to 
litigate  a  new  controversy  between  himself  and  a  codefendant  is 
not  maintainable  as  a  counterclaim  or  cross-bill,  but  must  be  litigat- 
ed against  codefendant  by  a  separate  action.1 

In  a  suit  for  breach  of  a  contract  to  exchange  realty,  defendant 
may  set  up  a  cross-petition,  alleging  breach  by  plaintiff,  and  ask  spe- 
cific performance  with  prayer  in  the  alternative  for  damages, 
though  he  knows  that  plaintiff  cannot  perform.2 

97  Wyman  v.  Herard,  59  P.  1009,  9  Okl.  35. 

»8  Lyman  v.  Stan  ton,  20  P.  510,  40  Kan.  727. 

99  Tracey'v.  Crepin,  138  P.  142,  40  Okl.  297. 

In  foreclosure,  a  grantee  of  the  mortgagor  under  a  warranty  deed  could  not 
set  up  by  cross-petition  damages  against  the  mortgagor  for  breach  of  the 
covenants  in  the  deed ;  such  matter  not  being  germane  to  the  original  action. 
Id. 

1  Patterson  v.  Central  State  Bank,  175  Okl.  147,  182  P.  678. 

In  an  action  on  a  note  wherein  defendant  has  additional  parties  made  co- 
defendants,  his  cross-bill,  attempting  to  litigate  a  controversy  between  himself 
and  such  co-defendants  not  germane  to  the  subject  matter  of  the  original  suit, 
was  properly  dismissed.  Id. 

2  Stramel  v.  Hawes,  154  P.  232,  97  Kan.  120. 

HON.PL.&PBAC.— 33  (513) 


§§  621-622  PLEADINGS  (Ch.  11 

In  the  absence  of  objection,  an  answer,  containing  the  requisite 
allegations,  may  be  treated  as  cross-petition,  though  not  so  named 
by  the  pleader.3 

Where  defendant,  by  cross-petition,  alleged  ownership  of  per- 
sonal property  and  prayed  equitable  relief,  and  it  appeared  that 
bill  of  sale  under  which  he  claimed,  although  in  his  own  name,  was 
taken  for  use  of  his  principal  and  had  been  delivered  to  principal, 
by  which  a  trust  resulted,  the  proof  failed  to  sustain  cause  of  action 
alleged,  and  he  could  not  recover,  notwithstanding  the  statute  pro- 
viding that  a  trustee,  etc.,  may  sue  without  joining  the  person 
beneficially  interested.4 

Where  a  resident  of  the  state  for  the  statutory  time  files  her  pe- 
tition for  divorce,  defendant  may  file  a  cross-petition  and  ob- 
tain a  decree  of  divorce  without  alleging  that  he  has  resided  con- 
tinually in  the  state  for  the  year  next  before  his  application  for 
divorce.5 

§  622.     Landlord  and  tenant 

In  a  landlord's  attachment,  the  tenant  may  counterclaim  for  labor 
performed  and  money  expended  in  improving  the  premises  under 
authority  from  the  landlord.6  The  amount  of  a  tenant's  counter- 
claim for  work  and  labor  authorized  by  the  landlord  is  to  be  deter- 
mined by  the  reasonable  value  of  same,  and  the  amount  allowable, 
for  money  expended  is  actual  expenditure.7 

Since  damages  resulting  from  a  breach  of  the  covenant  of  quiet 
enjoyment  arise  out  of  the  lease,  they  may  be  recovered  by  way 
of  counterclaim  in  an  action  for  rent.8 

A  lessee  on  discovering  fraudulent  representations  by  the  lessor 
of  a  material  fact  is  not  compelled  to  give  up  the  premises  and 
rescind  the  contract,  but  may  set  off  any  damage  caused  thereby 
on  suit  for  the  rent.9 

In  an  action  for  damages  for  breach  of  a  farm  lease  contract,  a 

s  Miller  v.  Oklahoma  State  Bank  of  Altus,  53  Okl.  616,  157  P.  767. 

•t  Frisco  Lumber  Co.  v.  Waldock  (Okl.)  176  P.  220 ;  Rev.  Laws  1910,  §  4683. 

s  Newman  v.  Newman,  112  P.  1007,  27  Okl.  381. 

e  Ratcliff  v.  Sharrock,  44  Okl.  592,  145  P.  802. 

7  Id. 

s  Hanley  v.  Banks,  51  P.  664,  6  Okl.  79. 

»  Myers  v.  Fear,  96  P.  642,  21  Okl.  498,  129  Am.  St.  Rep.  795. 

(514) 


Art.  5)  ANSWER  §§  623-625 

counterclaim  for  personal  property  taken  by  the  tenant  must  al- 
lege ownership  thereof  in  the  landlord  at  the  taking.10 

§  623.     Action  against  United  States 

While  no  affirmative  judgment  can  be  rendered  against  the 
United  States  on  a  set-off  in  favor  of  defendant,  yet,  when  the  Unit- 
ed States  sues,  it  waives  its  exemption  so  far  as  to  allow  a  presen- 
tation by  defendant  of  a  legal  and  equitable  set-off  to  the  extent 
of  the  demand  made,  but  no  judgment  can  be  rendered  against  the 
United  States  for  any  balance  found  due.11 

§  624.     Cross-demands — Deprivation 

"When  cross-demands  have  existed  between  persons  under  such 
circumstances  that,  if  one  had  brought  an  action  against  the  other, 
a  counterclaim  or  set-off  could  have  been  set  up,  neither  can 
be  deprived  of  the  benefit  thereof  by  the  assignment  or  death  of 
the  other;  but  the  two  demands  must  be  deemed  compensated  so 
far  as  they  equal  each  other."  12 

§  625.     •" .  Assignments 

When  cross-demands  have  existed  between  persons  under  such 
circumstances  that  if  one  had  brought  an  action  against  the  other  a 
set-off  could  have  been  set  up,  neither  can  be  deprived  of  the  benefit 
of  such  set-off  by  the  assignment  of  the  other.13  ' 

10  Hill  v.  White,«50  Okl.  573,  150  P.  1051. 

11  United  States  v.  Warren,  71  P.  685,  12  Okl.  350. 

12  Rev.  Laws  1910,  §  4751. 

is  Gardner  v.  Risher,  10  P.  584,  35  Kan.  93. 

The  fact  that  defendant  gave  verbal  directions  to  a  member  of  a  firm  which 
was  indebted  to  him  for  his  share  in  the  profits  on  a  contract  to  apply  such 
profits  to  the  payment  of  a  debt  due  from  defendant  to  such  party,  and  of  a 
note  due  to  plaintiffs  assignor  who  was  also  a  member  of  such  firm,  where 
nothing  was  ever  done  under  such  directions,  but  the  whole  of  such  profits 
were  included  in  securities  afterwards  transferred  by  the  firm  to  secure  its 
own  indebtedness,  does  not  affect  the  right  of  defendant  to  set  off  his  share  of 
such  profits  against  a  claim  prosecuted  against  him  by  an  assignee  of  such 
note,  who  purchased  after  maturity  thereof,  and  after  the  right  to  such  set- 
off  had  accrued.  Davies  v.  Stevenson,  54  P.  679,  59  Kan.  648. 

Where  a  building  contractor  assigns  the  money  due  him  under  the  contract 
to  one  who  has  furnished  materials  for  the  building,  and  the  assignee  sues 
the  owner  thereon,  the  owner  can  set  off  against  the  claim  his  damages  for 
the  wrongful  institution  of  an  action  formerly  brought  against  him,  and  pros- 
ecuted to  final  judgment,  by  such  assignee  on  his  claim  for  material,  without 
making  the  contractor  a  party.  Tracy  v.  Kerr,  28  P.  707,  47  Kan.  656. 

(515) 


§§  625-627  PLEADINGS  (Ch.  11 

> 

Where  a  corporation,  through  its  president,  asks  that  an  account 
owing  to  him  personally  by  the  holder  of  its  note  be  credited  there- 
on, it  amounts  to  a  transfer  of  the  account  from  the  president  to 
the  corporation;  and  in  an  action  on  the  note  plaintiff  cannot  ob- 
ject to  the  account  being  used  as  a  set-off  because  no  formal  as- 
signment was  made.1* 

§  626.    Definition 

A  "cross-demand"  is  a  demand  which  is  preferred  by  one  party  to 
an  action  in  opposition  to  a  demand  already  preferred  against  him 
by  his  adversary.15 

§  627.     Parties  and  mutuality 

It  is  not  necessary  that  counterclaim  arising  out  of  contract  or 
transaction  alleged  as  foundation  of  claim,  or  connected  with  sub- 
ject of  action,  exist  as  between  all  the  parties  and  the  defendant; 16 

i*  Kansas  City  Paper  House  v.  Foley  Ry.  Printing  Co.,  118  P.  1056,  85  Kan. 
678,  39  L.  R.  A.  (N.  S.)  747,  Ann.  Cas.  1913A,  294. 

is  Drovers'  State  Bank  v.  Elliott,  154  P.  255,  97  Kan.  64. 

IB  Cooper  v.  Gibson  (Okl.)  170  P.  220;  Robertson  v.  Howerton,  56  Okl.  555, 
156  P.  329. 

Under  the  direct  provisions  of  Acts  Ter.  Leg.  Okl.  1905,  p.  328,  c.  28,  art. 
7,  §  3,  it  is  not  necessary  that  a  set-off  or  counterclaim  shall  exist  as  between 
all  parties  to  the  suit ;  but  any  party  may  enforce  his  set-off  or  counterclaim 
against  the  liability  sought  to  be  enforced  against  him.  Loeb  v.  Loeb,  103  P. 
570,  24  Okl.  384. 

One  joint  maker  of  a  note  can  set  off  against  it  an  indebtedness  from  the 
payee  due  him  individually.  McKay  v.  H.  A.  Hall  &  Co.,  30  Okl.  773,  120  P. 
1108,  39  L.  R.  A.  (N.  S.)  658 ;  Curlee  v.  Ruland,  56  Okl.  329,  155  P.  1182. 

Where  a  purchaser  of  merchandise  from  a  firm  agreed  to  pay  certain  notes 
and  account  owed  by  the  firm,  and  gave  his  note  to  the  partners,  who  owned 
all  the  property,  and  in  suit  thereon  counterclaimed  on  the  notes  and  ac- 
count which  had  been  assigned  to  him,  the  plaintiff  is  entitled  to  the  benefit 
of  the  promise  to  the  firm  to  pay  such  notes  and  account.  Danielson  v.  Scott, 
129  P.  1190,  88  Kan.  789. 

E.  transferred  cattle  and  other  property  to  defendants  under  a  contract  by 
which  the  latter  undertook,  inter  alia,  to  assume  the  payment  of  damages  due 
to  plaintiff  on  account  of  his  cattle  having  become  infected  with  a  fever  prev- 
alent among  such  cattle  of  E.,  by  reason  of  E.'s  negligence.  Plaintiff  there- 
upon brought  suit  on  the  contract,  as  the  party  for  whose  benefit  it  was  made, 
to  recover  such  damages.  Held,  that  defendants  are  entitled  to  set  off  against 
this  claim  an  indebtedness  of  plaintiff  to  them,  existing  before  the  contract 
with  E.  was  made.  Clay  v.  Woodrum,  25  P.  619,  45  Kan.  116. 

Under  the  express  provisions  of  Comp.  Laws  1909,  §  5635,  a  defendant  may 
plead  and  prove  a  set-off  or  counterclaim  of  a  proper  nature  in  defense  of  the 
liability  sought  to  be  enforced  by  the  plaintiff;  and  it  is  not  necessary  that 

(516) 


Art  5)  ANSWER  §§  628-630 

but  there  must  be  privity  of  parties  to  entitle  defendant  to  plead 
a  set-off,  and  defendant  cannot  plead  a  set-off  in  favor  of  himself 
and  against  one  not  a  party  to  the  suit.17 

§  628.    New  party — Counterclaim 

"When  it  appears  that  a  new  party  is  necessary  to  a  final  deci- 
sion upon  a  counterclaim,  the  court  may  either  permit  the  new 
party  to  be  made  by  a  summons  to  reply  to  the  counterclaim,  or 
may  direct  the  counterclaim  to  be  stricken  out  of  the  answer,  and 
made  the  subject  of  a  separate  action."  18 

§  629.    New  party— Set-off 

"When  it  appears  that  a  new  party  is  necessary  to  a  final  deci- 
sion upon  the  set-off,  the  court  shall  permit  the  new  party  to  be 
made,  if  it  also  appear  that,  owing  to  the  insolvency  or  non-res- 
idence of  the  plaintiff,  or  other  cause,  the  defendant  will  be  in  dan- 
ger of  losing  his  claim,  unless  permitted  to  use  it  as  a  set-off."  19 

§  630.     Form  and  requisites 

A  counterclaim  must  be  pleaded  as  fully  and  distinctly  and  with 
the  same  substantial  requisites  as  an  original  cause  of  action,  must 
be  sufficient  within  itself  without  recourse  to  the  pleadings,  unless 
by  express  reference,20  should  be  separately  stated,  and  must  show 
with  certainty  the  character  of  claim,  how  it  accrued,  and  the  facts 
making  it  a  proper  subject  of  counterclaim  or  cross-petition.21 

the  same  shall  exist  as  between  all  parties  plaintiff  and  defendant  in  such  ac- 
tion. Stauffer  v.  Campbell,  30  Okl.  76,  118  P.  391. 

17  Van  Arsdale  v.  Edwards,  101  P.  1123,  24  Okl.  41. 

An  overpayment  to  the  president  and  secretary  of  a  corporation  could  not 
be  set  off  as  against  an  amount  due  the  corporation  in  an  action  to  which  the 
^resident  and  secretary  were  not  parties.  Peck- Williamson  Heating  &  Ven- 
tilating Co.  v.  Board  of  Education,  Oklahoma  City,  50  P.  236,  6  Okl.  279. 

is  Rev.  Laws  1910,  §  4749. 

19  Rev.  Laws  1910,  §  4750. 

20  Mathews  v.  Sniggs,  75  Okl.  108,  182  P.  703. 

21  Id. 

In  action  for  breach  of  contract  to  purchase  plants,  plea  setting  up  as  set- 
off  breach  of  another  contract  to  plant  seed  and  ship  to  defendant  any  fit 
roots  held  subject  to  demurrer  for  failure  to  show  that  plaintiff  produced  roots 
fit  for  defendant's  purposes.  Barteldes  Seed  Co.  v.  Mitchell,  59  Okl.  65,  157 
P.  935. 

(517) 


§§  631-634  PLEADINGS  (Ch.  11 

§  631.     Notice 

Where  a  judgment  is  set  aside  and  an  answer  asking  for  affirma- 
tive relief  filed,  notice  of  the  same  must  be  given  to  the  parties  af- 
fected thereby.22 

§  632.     Waiver 

The  right  of  set-off  existing  between  parties  owing  each  other 
may,  on  valuable  consideration,  be  waived.23 

In  suit  on  supersedeas  bond,  with  counterclaim  for  damages  from 
unlawful  attachment  in  action  in  which  bond  was  executed,  plaintiff, 
by  replying  and  joining  issue  of  former  adjudication,  waived  ob- 
jection that  such  damages  were  not  proper  subject  for  a  coun- 
terclaim.24 

§  633.     Withdrawal 

"The  court,  at  any  time  before  the  final  submission  of  the 
cause,  on  motion  of  the  defendant,  may  allow  a  counterclaim  or 
set-off,  set  up  in  the  answer,  to  be  withdrawn,  and  the  same  may 
become  the  subject  of  another  action;  on  motion  of  either  par- 
ty, to  be  made  at  the  time  such  counterclaim  or  set-off  is  with- 
drawn, an  action  on  the  same  shall  be  docketed  and  proceeded 
in  as  in  like  cases  after  process  served;  and  the  court  shall  direct 
the  time  and  manner  of  pleading  therein.  If  an  action  b'e  not  so 
docketed,  it  may  afterwards  be  commenced  in  the  ordinary  way."  25 

§  634.     Neglect  to  claim — Cost 

"If  the  defendant  omit  to  set  up  a  counterclaim  or  set-off,  he  can- 
not recover  costs  against  the  plaintiff  in  any  subsequent  action 
thereon ;  but  this  section  shall  not  apply  to  causes  of  action  which 

22  One  of  several  defendants  procured  the  judgment  rendered  in  the  case 
to  be  set  aside  as  to  him,  upon  the  ground  that  no  sufficient  service  of  sum- 
mons was  ever  made  upon  him.    Afterwards,  he  filed  an  answer  in  the  action 
setting  up  new  matter  and  grounds  for  affirmative  relief,  which  affected  the 
rights  and  interests  of  several  of  the  other  parties  and  other  persons,  with- 
out giving  such  other  parties  or  persons  any  notice  or  any  opportunity  to  ap- 
pear and  defend.     Held,  that  the  court  might,  upon  the  hearing  on  such  an- 
swer, refuse  to  grant  the  relief  prayed  for  in  such  answer,  and  dismiss  this 
new  proceeding  without  prejudice.     Clay  v.  Hildebrand,  24  P.  962,  44  Kan. 
481. 

23  Stacy  v.  Cook,  61  P.  399.  62  Kan.  50. 

24  Brisley  v.  Mahaffey,  64  Okl.  319,  167  P.  984. 

25  Rev.  Laws  1910,  §  4771. 

(518) 


Art.  5)  ANSWER  §§  635-637 

are  stricken  out  of,  or  withdrawn  from  the  answer,  as  in  sections 
4749  and  4771."  26 

§  635.     Forms 

ANSWER   SETTING  UP  COUNTERCLAIM   OR   SET-OFF 

(Caption.) 

Comes  now  the  defendant,  and  in  answer  to  the  plaintiff's  petition 
filed  herein  states: 

1.  ^hat  he  denies  each  and  every  material  allegation  made  by 
plaintiff  in  his  petition,  except   (here  state  matters  not  denied). 

2.  That  he  has  a  counterclaim  (or  set-off)  against  plaintiff  as  fol- 
lows:    (State  in  similar  manner  as  though  defendant  were  plain- 
tiff, stating  his  cause  of  action  in  his  petition.) 

Wherefore  defendant  prays  that  judgment  for  plaintiff  be  denied, 
and  that  judgment  be  rendered  for  defendant  against  the  plaintiff 

for  the  sum  of dollars,  and  for  his  costs. 

(Signature)  Attorneys  for  Defendant. 

DIVISION  V. — UNAUTHORIZED  PLEAS  • 

§  636.     Plea  in  abatement 

There  is  no  provision  for  a  plea  in  abatement,  and  such  a  plead- 
ing, if  sustained,  must  be  treated  as  a  demurrer  or  an  answer.27 

§  637.     Plea  in  bar 

Under  the  statute  providing  that  the  pleadings  authorized  are 
petition  by  plaintiff,  answer  or  demurrer  by  defendant,  demurrer 
or  reply  by  plaintiff,  and  demurrer  by  defendant  to  reply,  a  plea  in 
bar  is  unauthorized.28 

se  Rev.  Laws  1910,  §  4748. 

27  Patterson  v.  Choate,  50  Okl.  761,  151  P.  620;    Maxia  v.  Oklahoma  Port- 
land Cement  Co.  (Okl.)  176  P.  907 ;   Sweet  v.  Crane,  39  Okl.  248,  134  P.  1112. 

In  a  suit  for  damages  from  the  levy  of  an  attachment,  a  defendant's  motion 
to  abate,  alleging  that  it  was  necessary  to  maintenance  of  suit  that  it  be  final- 
ly adjudicated  that  attachment  was  wrongfully  obtained,  would  be  regard- 
ed as  an  answer  to  the  petition.  Nation  v.  Savely  (Okl.)  176  P.  937. 

The  court  was  probably  incautious  in  the  use  of  terms  in  holding  in  1899 
that  the  point  that  plaintiff  is  not  a  corporation  should  be  raised  by  a  special 
plea  in  the  nature  of  a  plea  in  abatement.  Leader  Printing  Co.  v.  Lowry,  59 
P.  242,  9  Okl.  89. 

28  Anderson  v.  State,  140  P.  1142,  42  Okl.  151;  Rev.  Laws  1910,  §  4736. 

(519) 


§§  638-639  PLEADINGS  (Ch.  11 

ARTICLE  VI 

REPLY 

Section* 

638.  Reply  or  demurrer. 

639.  When  reply  necessary. 

640.  Counterclaim  or  set-off  in  reply. 

,  641.    Demurrer  or  reply  to  answer  by  codefendant. 

642.  Construction  and  effect. 

643.  Requisites  and  sufficiency — Forms. 

644.  Departure. 

645-    Waiver  of  objections. 

§  638.     Reply  or  demurrer 

"When  the  answer  contains  new  matter,  the  plaintiff  may  reply 
to  such  new  matter,  denying,  generally  or  specifically,  each  allega- 
tion controverted  by  him ;  and  he  may  allege,  in  ordinary  and  con- 
cise language,  and  without  repetition,  any  new  matter  not  incon- 
sistent with  the  petition,  constituting  a  defense  to  such  new  matter 
in  the  answer ;  or  he  may  demur  to  the  same  for  insufficiency,  stat- 
ing, in  his  demurrer,  the  grounds  thereof;  and  he  may  demur  to 
one  or  more  of  such  defenses  set  up  in  the  answer,  and  reply  to  the 
residue."  29 

§  639.     When  reply  necessary 

Where  the  answer  contains  no  new  matter  and  amounts  to  no 
more  than  a  denial  of  the  petition,  no  reply  is  necessary.30' 

29  Rev.  Laws  1910,  §  4753. 

so  Wichita  Falls  &  N.  W.  Ry.  Co.  v.  Puckett,  53  Okl.  463,  157  P.  112. 

In  suit  on  contract  and  bond,  a  verified  general  denial  did  not  constitute 
"new  matter,"  entitling  plaintiff  to  a  reply  thereto.  Detroit  Automatic  Scale 
Co.  v.  Taylor  (Okl.)  169  P.  908. 

No  reply  need  be  filed  where  the  answer  does  not  set  up  new  matter,  but 
merely  evidentiary  facts  by  way  of  denial.  Denman  v.  Brennamen,  48  Okl. 
566,  149  P.  1105,  L.  R.  A.  1915E,  1047. 

In  an  action  upon  a  forfeited  recognizance,  the  defendant,  by  a  verified  an- 
swer, averred  that  he  signed  the  instrument  when  it  was  yet  incomplete  and 
what  is  known  commonly  as  a  blank  recognizance,  the  blank  spaces  left  there- 
in for  the  name  of  the  county,  the  offense  charged,  the  amount  in  which  the 
prisoner  was  held  and  the  court  before  which  he  was  required  to  appear,  be- 
ing left  unfilled,  and  that  he  attached  his  name  to  it  upon  the  condition  that  an- 
other person  should  join  him  in  signing  the  recognizance,  and,  when  so  signed, 
the  blanks  should  be  filled  out  by  the  co-surety  and  the  instrument  delivered, 
and  that  unless  it  was  so  executed  he  was  not  to  become  liable  thereon.  He 
also  alleged  that  the  recognizance  was  not  signed  or  completed  by  the  other 

(520) 


Art.  6)  REPLY  §  639 

New  matter  in  an  answer  which  does  not  constitute  a  defense  to 
plaintiff's  petition,  does  not  require  a  reply.31 

A  set-off  or  counterclaim  in  an  answer  requires  a  reply;32  but 
defendant  need  file  no  reply  to  such  reply.33 

The  plaintiff  in  an  action  against  a  carrier  of  live  stock,  in  order 
to  avoid  a  valid  limitation  of  liability  set  up  in  the  answer,  must 
plead  any  deceit  or  fraud  practiced  upon  him  in  obtaining  his  as- 
sent to  the  contract.34 

party,  and  therefore  that  he  was  not  liable  thereon.  Held,  that  this  answer 
was  in  substance  and  effect  a  denial  that  the  recognizance  sued  on  had  been 
executed  by  him,  and  a  verified  reply  by  the  plaintiff  denying  the  allegations 
of  the  answer  was  unnecessary.  Madden  v.  State,  10  P.  469,  35  Kan.  146. 

A  general  denial  was  filed  to  the  original  answer  of  defendants,  and  after- 
wards a  supplemental  petition  was  filed.  Defendants  answered  again  fully 
to  the  merits  of  the  action,  but  did  not  set  forth  any  new  matter.  Held,  that 
another  reply  was  unnecessary.  Dreiling  v.  First  Nat.  Bank,  23  P.  94,  43 
Kan.  197,  19  Am.  St.  Rep.  126. 

A  reply  is  unnecessary  where  it  would  merely  repeat,  in  effect,  the  allega- 
tions off  the  petition.  Muskogee  Vitrified  Brick  Co.  v.  Napier,  126  P.  792, 
34  Okl.  618. 

An  answer  which,  after  a  general  denial  of  the  negligence  charged,  alleges 
that  any  injuries  sustained  were  the  result  of  plaintiff's  own  negligence  does 
not  call  for  a  reply.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Pitchford,  44  Okl.  197,  143. 
P.  1146. 

Where  answer  to  plea  of  intervention  contains  a  general  denial,  and  affirm- 
ative matter  amounting  to  a  denial  only  of  the  matters  set  up  in  the  plea,  in- 
tervener  need  not  file  a  denial  of  such  affirmative  matter.  Farmers'  State 
Bank  of  Ada  v.  Keen  (Okl.)  167  P.  207. 

The  answer,  in  a  suit  to  cancel  a  deed  as  a  forgery,  held  to  be  in  effect  a 
general  denial  of  the  allegation  of  forgery,  to  which  no  reply  was  necessary 
in  order  to  render  admissible  evidence  offered  to  establish  forgery.  Cox  v. 
Gettys,  53  Okl.  58,  156  P.  892. 

si  West  v.  Cameron,  18  P.  894,  39  Kan.  736,  judgment  affirmed  on  rehear- 
ing, 19  P.  616 ;  Owens  v.  Farmers'  &  Merchants'  Bank  of  Duke,  54  Okl.  387, 
154  P.  355. 

32  Where  the  petition  set  out  an  agreement  with  an  itemized  account  there- 
under showing  a  balance  due  plaintiff,  and  defendant,  after  controverting  part 
of  the  allegations,  set  up  the  agreement,  but  alleged  a  different  result  grow- 
ing out  thereof,  and  set  up  an  itemized  account  as  a  counterclaim,  showing  a 
balance  due  him,  it  constituted  a  counterclaim,  which  required  a  reply.    Aiken 
v.  Franz,  43  P.  306,  2  Kan.  App.  75. 

33  When  a  defendant  in  an  action  to  foreclose  a  mortgage  sets  up  in  his 
answer  a  note  and  mortgage  executed  by  a  codefendant,  on  which  judgment 
is  asked,  the  reply  thereto  filed  by  such  codefendant  is  the  final  pleading,  and 
any  allegation  of  new  matter  in  such  reply  is  deemed  controverted.    Hughes 
v.  Durein,  44  P.  434,  3  Kan.  App.  63. 

s*  St.  Louis  &  S.  F.  R.  Co.  v.  Zickafoose,  39  Okl.  302,  135  P.  406. 

(521) 


§§  640-642  PLEADINGS  (Ch.  11 

§  640.     Counterclaim  or  set-off  in  reply 

Where  defendant  in  a  civil  action  files  an  answer,  which,  in 
addition  to  a  defense,  alleges  facts  constituting  a  new  cause  of 
action  by  way  of  set-off,  and  prays  for  judgment,  plaintiff  may  not 
in  his  reply  aver  new  matter  constituting  a  counterclaim  or  set-off 
on  which  he  asks  for  affirmative  relief,  but  his  statements  must  be 
confined  to  facts  constituting  a  defense  to  the  answer.35 

§  641.     Demurrer  or  reply  to  answer  by  codefendant 

"Where  the  answer  contains  new  matter  constituting  a  right 
to  relief  against  a  codefendant  concerning  the  subject  of  the  action, 
such  codefendant  may  demur  or  reply  to  such  matter  in  the  same 
manner  as  if  he  were  plaintiff,  and  subject  to  the  same  rules,  as  far 
as  applicable."  36 

§  642.     Construction  and  effect 

An  allegation  in  an  answer  is  to  be  taken  as  true  when  the  plain- 
tiff, in  reply,  pleads  in  confession  and  avoidance.37 

An  unverified  reply  to  an  answer  setting  up  a  written  contract 
does  not  admit  defendant's  construction  of  the  contract  so  as  to  au- 
thorize a  judgment  on  the  pleadings;38  but  a  mere  general  denial 
admits  that  the  contract  is  as  alleged.39 

ss  Beakey  v.  Vander  Meerschen,  78  Kan.  538,  97  P.  478. 

se  Rev.  Laws  1910,  §  4755 ;   Long  v.  Harris,  132  P.  473,  37  Okl.  472. 

37  Meeh  v.  Missouri  Pac.  Ry.  Co.,  60  P.  319,  61  Kan.  630. 

In  an  action  by  officers  of  grand  lodge  for  moneys  paid  defendant  by  the 
treasurer  of  the  lodge,  admission  in  reply  held  sufficient,  in  absence  of  evi- 
dence to  sustain  matter  in  avoidance,  to  sustain  a  verdict  for  defendant. 
Washbon  v.  Hixon,  121  P.  518,  86  Kan.  406. 

ss  McKnight  v.  Strasburger  Bldg.  Co.,  150  P.  542,  96  Kan.  118. 

39  Plaintiff  sued  defendant  carrier  for  the  deterioration  of  a  shipment  of 
live  stock,  alleging  shipment  under  a  written  contract  which  could  not  be 
produced  because  it  was  in  the  hands  of  the  defendant.  Defendant  attached 
the  alleged  contract  to  its  answer,  which  contained  a  stipulation  requiring 
notice  of  damage  to  be  served  on  the  railroad  company's  agent  within  one 
day  after  the  delivery  of  the  stock  at  destination,  and  declaring  that  a  failure 
to  comply  therewith  should  bar  any  recovery.  The  answer  alleged  that  such 
requirement  had  not  been  complied  with,  after  which  plaintiff  filed  a  reply 
setting  up  only  a  general  denial.  Held,  that  the  written  contract  was  there- 
by admitted  as  alleged.  St.  Louis  &  S.  F.  R.  Co.  v.  Cake,  105  P.  322,  25  Okl. 
227. 

(522) 


Art.  6)  REPLY  §  643 

§  643.     Requisites  and  sufficiency — Forms 

Where  the  answer  alleges  that  the  note  sued  on  is  ultra  vires,  a 
demurrer  to  a  reply  containing  a  general  denial  is  properly  over- 
ruled.40 

Failure  to  file  a  reply  controverting  the  allegations  of  the  answer 
in  an  action  on  notes  setting  up  the  illegality  of  the  contract  in 
connection  with  which  the  notes  were  given  operates  as  an  ad- 
mission of  the  facts  alleged  relative  thereto.41 

Where  a  railroad  employe  was  killed,  and  after  a  settlement  with 
the  widow  a  son  was  born  and  the  widow  qualified  as  administratrix 
and  set  up  the  son's  rights  as  a  beneficiary,  and  the  railroad  plead- 
ed the  settlement,  a  reply  that  the  settlement  was  only  of  the  wi- 
dow's individual  rights,  or  that,  if  it  embraced  the  rights  of  the 
child,  it  did  not  express  the  true  contract,  was  not  demurrable.42 

In  an  action  by  the  vendor  for  the  specific  performance  of  a 
contract  for  the  sale  of  real  property,  an  allegation  in  the  answer 
that  the  plaintiff  has  never  tendered  a  deed  executed  by  himself  is 
met  by  allegations  in  the  reply  that  no  previous  objection  had  been 
made  upon  that  ground  to  the  deed  which  he  had  tendered,  and 
that  he  had  at  all  times  been  and  was  still  able  and  willing  to  furnish 
such  a  deed.43 

Allegations  of  new  matter  in  an  answer  may  call  for  a  .verified 
denial,  where  the  same  allegations  in  a  petition  would  do  so.4* 

REPLY — SUIT  TO  CANCEL  CONVEYANCES 

(Caption.) 

Come  now  the  plaintiffs  and  for  reply  say  that  the  land  in  ques- 
tion was  worth  for  agricultural  purposes  at  least  fifty  dollars  per 

*o  Western  &  Southern  Fire  Ins.  Co.  v.  Murphey,  56  Okl.  702,  156  P.  885. 

41  Howard  v.  Farrar,  114  P.  695,  28  Okl.  490. 

42  Herndon  v.  St.  Louis  &  S.  F.  R.  Co.,  128  P.  727,  37  Okl.  256. 

43  Geo.  H.  Paul  Co.  v.  Shaw,  119  P.  546,  86  Kan.  136,  37  L.  R.  A.  (N.  S.)  1123, 
Ann.  Gas.  1913B,  956. 

441  Defendant  in  ejectment  claimed  title  under  certain  tax  deeds,  and  in  his 
answer  alleged  their  due  execution  and  the  validity  of  all  proceedings  anterior 
thereto;  but  it  appeared  on  the  face  of  such  deeds,  which  were  exhibited  as 
part  of  the  answer,  that  they  were  void.  Plaintiff's  reply  was  a  general  de- 
nial, unverified.  Held,  that  the  reply  is  not  sufficient  to  put  in  issue  the  va- 
lidity of  the  tax  deeds  and  proceedings.  Tweedell  v.  Warner,  23  P.  603,  43 
Kan.  597. 

(523) 


§    643  PLEADINGS  (Ch.  11 

acre.  They  say  that  the  option  relied  on  as  the  foundation  of  de- 
fendant's claim  was  purchased  by  F.  S.  and  P.  C.  for  one  thousand 
dollars  with  money  procured  from  plaintiffs,  furnished  by  O.  R. ; 
that  said  O.  R.,  as  a  part  of  the  trade  made  with  defendants,  and 
with  the  help  of  defendants,  and  by  the  help  of  F.  S.  and  P.  C., 
who  pretended  to  act  as  the  agent  of  plaintiffs,  procured  a  half  in- 
terest in  the  property  jointly  with  defendants ;  that  P.  C.  acted  as 
the  agent  of  plaintiffs  in  making  the  O.  R.  deed,  and  the  deal  with 
defendants,  and  proceeded  to  sell  one-half  to  said  O.  R.  as  said 
agent  for  a  consideration  of  twenty-eight  thousand  dollars,  and 
was  paid  a  commission  by  plaintiffs  of  five  per  cent.,  and  said 
O.  R.  paid  said  P.  C.  four  thousand  five  hundred  dollars  as  a  com- 
mission for  making  the  deal  with  him  and  defendant;  that  these 
facts  developed  for  the  first  time  on  the  trial  of  a  case  against  said 
O.  R.  held  in  this  court  February  25,  1918,  to  cancel  his  deed. 

That  the  contract  of  F.  S.  and  P.  C.  with  reference  to  securing  a 
conveyance  to  F.  S.  developed  fully  for  the  first  time  in  this  trial 
on  June  19,  1917,  on  a  suit  of  plaintiffs  to  set  aside  a  conveyance 
to  said  P.  C.  of  one-fourth  of  the  land,  made  at  the  same  time  said 
defendant  procured  his  deed  herein  attacked;  that  the  O.  R.  deal, 
the  P.  C.  deal,  and  defendants'  deal  were  all  part  of  one  transaction, 
and  the  making  of  each  depended  and  was  conditioned  on  the  mak- 
ing of  the  other;  that  said  O.  R.  and  his  agents  and  said  P.  C.  and 
F.  S.  and  the  defendants  and  their  agents  acted  in  concert,  and 
with  a  design  to  get  plaintiffs'  property  for  less  than  its  value  and  pro- 
ceeded to  incumber  it  as  much  as  possible,  and  also  to  render  it  diffi- 
cult for  plaintiffs  to  clear  the  title  thereto  and  with  a  design  of 

imposing  on  the  plaintiffs,  and  to  take  advantage  of  said 's 

needs  of  money  and  his  spendthrift  propensities ;  that  the  conduct 
of  said  O.  R.  in  bribing  his  agent  were  unknown  to  plaintiffs  until 
the  trial  of  the  O.  R.  suit,  and  all  the  details  are  yet  unknown.  They 
say  that  they  do  not  now  know  and  understand  all  the  material 
facts  connected  with  the  execution  of  said  deeds,  and  they  say  that 
there  are  no  innocent  purchasers  from  said  defendant,  and  defend- 
ants F.  E.  and  R.  H.  paid  nothing  and  knew  all  the  facts.  They  say 
that  as  soon  as  they  learned  of  the  fraudulent  conduct  of  defendant 
and  his  co-conspirators  they  began  this  suit  to  set  aside  defendants' 
deed.  They  say  that  there  never  was  any  consideration  for  de- 
fendants' deed,  and  defendants  have  been  fully  paid  for  anything 
(524) 


Art.  6)  REPLY  §§  643-644 

that  he  had  parted  with.  They  say  they  deny  all  allegations  of 
new  matter  in  the  amended  answer  not  herein  admitted,  and  pray  as 
in  their  petition. 


State  of  Oklahoma,  1 

L  SS.  I 

County  of .  J  " 

A.  M.  and  B.  M.,  of  lawful  age,  being  first  duly  sworn,  on  oath 
states:  That  they  are  the  plaintiffs  in  the  above  entitled  cause, 
that  they  have  read  the  within  and  foregoing,  and  that  the  same  is 
true  and  correct,  as  they  verily  believe. 


Subscribed  and  sworn  to  before  me  this  — day  of , 

19—. 

(Seal.)  -. 

REPLY — DEFENSE  TO  COUNTERCLAIM 

(Caption.) 

Comes  now  the  above  named  plaintiff,  and  for  its  reply  to  the  an- 
swer of  defendant  to  plaintiff's  amended  petition,  filed  herein,  al- 
leges and  states: 

1.  That  it  denies  each  and  every  allegation  therein  contained, 
except  such  as  are  hereinafter  specifically  admitted. 

2.  For  further  reply  and  defense  to  such  answer,  and  to  the  alleg- 
ed set-off,  plaintiff  alleges  and  states :    (Set  forth  defense  to  counter- 
claim in  similar  manner  as  though  plaintiff  were  defendant,  stating 
his  defense  and  answer  to  petition  filed  against  him.) 

Wherefore  plaintiff  prays  that  defendant  take  nothing  by  reason 
of  his  alleged  counterclaim,  and  that  plaintiff  have  judgment  as 
prayed  for  in  plaintiff's  amended  petition  filed  herein. 

(Signatures)  Attorneys  for  Plaintiff. 
§  644.     Departure 

Where  the  plaintiff  alleges  performance  of  all  the  conditions  of 
a  contract,  and  defendant  charges  various  breaches,  a  reply  admit- 
ting failure  to  perform,  and  pleading  estoppel  and  waiver,  consti- 
tutes a  departure.45 

*s  Gage  v.  Connecticut  Fire  Ins.  Co.  of  Hartford,  Conn.,  127  P.  407,  34  Okl. 
744 ;  Springfield  Fire  &  Marine  Ins.  Co.  v.  Halsey,  126  P.  237,  34  Okl.  383 ; 

(525) 


§  644  PLEADINGS  (Ch.  11 

In  an  action  of  ejectment  it  is  improper  to  permit  plaintiff,  over 
objection,  to  file  a  reply  setting  up  a  cause  of  action  to  quiet  title, 
since  the  claim  of  plaintiff  is  substantially  changed.46 

Where  the  petition  alleges  ownership  generally,  but  the  reply 
admits  the  ownership  to  be  special,  as  that  of  a  mortgagee,  such 
change  of  allegations  constitutes  a  departure.47 

Where  allegations  in  a  reply  are  mere  repetition,  in  a  slightly 
changed  form  of  matter  already  alleged  in  the  amended  petition,  and 
are  not  contradictory  thereof,  the  reply  is  not  objectionable  as  a 
departure.48 

New  matter  in  the  reply  which  plaintiff  is  forced  to  plead  in  or- 
der to  meet  the  allegations  of  the  answer  will  not  constitute  de- 
•parture  if  it  does  not  contradict  the  facts  stated  in  the  petition,  and 
if  it  is  not  adopted  for  a  new  basis  for  relief  in  place  of  the  cause 
of  action  presented  by  the  petition.49 

Merchants'  &  Planters'  Ins.  Co.  v.  Marsh,  125  P.  1100,  34  Okl.  453,  42  L.  R.. 
A.  (N.  S.)  996 1  Union  Casualty  &  Surety  Co.  v.  Bragg,  65  P.  272,  63  Kan.  291;' 
St.  Paul  Fire  &  Marine  Ins.  Co.  v.  Mountain  Park  Stock  Farm  Co.,  99  P.  647, 
23  Okl.  79. 

46  Bear  v.  Cutler,  86  Kan.  66,  119  P.  713. 

•47  Johnson  v.  State  Bank  of  Seneca,  52  P.  860,  59  Kan.  250. 

4-s  Landon  v.  Morehead,  126  P.  1027,  34  Okl.  701. 

4»  Hunter  Milling  Co.  v.  Allen,  88  P.  252,  74  Kan.  679,  8  L.  R.  A.  (N.  S.) 
291. 

In  action  on  school  warrants,  with  answer  that  they  were  unlawfully  is- 
sued, without  consideration,  and  are  void,  reply  setting  up  estoppel  held  not 
a  departure.  Home  State  Bank  v.  School. Dist.  No.  17,  102  Kan.  98,  169  P.  202. 

Where  petition  set  forth  certain  letters  constituting  contract  of  agency,  and 
the  answer  was  a  denial  and  an  allegation  of  want  of  authority,  and  the  re- 
ply pleaded  other  correspondence  to  support  the  contract,  it  did  not  constitute 
a  departure.  Sturgeon  v.  Culver,  124  P.  419,  87  Kan.  404,  Ann.  Gas.  1913E,  341. 

Plaintiff  pleaded  that  an  oral  contract  had  been  violated  by  defendant,  who 
alleged  that  the  contract  was  in  writing  and  set  up  a  brief  memorandum. 
The  reply  admitted  the  signing  of  the  memorandum,  but  alleged  that  it  was 
only  a  part  of  the  contract,  and  set  forth  the  remaining  stipulations  which 
were  oral.  Held  not  to  constitute  a  departure.  Heskett  v.  Border  Queen  Mill 
&  Elevator  Co.,  105  P.  432,  81  Kan.  356. 

Allegation  of  the  answer  that  insurer  had  fraudulently  misrepresented  in 
her  proof  of  loss  the  value  of  the  property  was  put  in  issue  by  general  de- 
nial; and  further  allegations  in  the  reply,  as  to  waiver  of  conditions  of  the. 
policy,  were  surplusage,  and  did  not  constitute  a  material  variance.  Ameri- 
can Ins.  Co.  of  Newark,  N.  J.,  v.  Rodenhouse,  128  P.  502,  36  Okl.  211 ;  Roches- 
ter German  Ins.  Co.  of  Rochester,  N.  Y.,  v.  Rodenhouse,  128  P.  508,  36  Okl. 
378 ;  Georgia  Home  Ins.  Co.  v.  Halsey,  133  P.  202,  37  Okl.  678. 

A  reply,  admitting  that  suit  was  commenced  after  expiration  of  the  limi- 

(526) 


Art.  6)  REPLY  §§  644-645 

Where  breach  of  condition  subsequent  has  been  pleaded  as  a 
defense,  a  reply  alleging  a  waiver  or  estoppel  is  not  a  departure.50 

§  645.     Waiver  of  objections 

The  fact  that  a  denial  in  the  reply  is  pregnant  with  one  or  more 
admissions  is  immaterial,  where  the  parties  are  compelled  to  resort 
to  their  pfoof  as  if  the  reply  were  of  good  character.51 

Failing  to  move  to  strike  a  reply,  constituting  a  departure  and 
going  to  trial,  waives  the  defect.52 

tation  period  prescribed  by  the  Indian  Territory  policy  sued  on,  but  pleading 
facts  which,  if  true,  would  estop  defendant  from  taking  advantage  of  such 
clause  as  a  defense,  held  not  a  departure.  Northwestern  Nat.  Life  Ins.  Co. 
Ward,  56  Okl.  188,  155  P.  524. 

In  action  on  benefit  certificate,  where  petition  pleaded  full  performance  of 
all  conditions  precedent,  and  answer  alleged  a  breach  of  warranty,  a  reply 
pleading  waiver  and  estoppel  was  not  such  a  departure  as  to  warrant  a  re- 
versal of  judgment  for  plaintiff.  Miller  v.  National  Council  of  Knights  and 
Ladies  of  Security,  103  Kan.  579.  175  P.  397. 

so  Springfield  Fire  &  Marine  Ins.  Co.  v.  Null,  133  P.  235,  37  Okl.  665;  West- 
ern Reciprocal  Underwriters'  Exchange  v.  Coon.  38  Okl.  453,  184  P.  22 ;  Queen 
Ins.  Co.  of  America  v.  Dalrymple,  60  Okl.  28,  158  P.  1154 ;  German- American 
Ins.  Co.  of  New  York  v.  Lee,  51  Okl.  28,  151  P.  642. 

Quieting  title. — Where  defendants,  in  an  action  to  quiet  title,  plead  facts 
showing  that  they  are  tenants  in  common  as  to  a  one-third  interest,  a  reply 
admitting  that  they  hold  the  naked  legal  title  to  the  extent  of  that  interest, 
and  alleging  that  they  have  soFd  and  received  the  consideration  for  such  in- 
terest, and  that  a  deed  was  given  therefor  with  their  consent  by  one  supposed 
by  all  parties  to  have  authority  as  trustee  to  convey  the  Jand,  does  not  con- 
stitute a  departure.  Neve  v.  Allen,  41  P.  966,  55  Kan.  638. 

In  an  action  to  quiet  title  and  to  cancel  a  contract  purporting  to  have  been 
made  by  plaintiff's  agent  with  defendant  for  the  exchange  of  lands  on  the 
ground  that  the  execution  thereof  was  not  authorized,  and  to  cancel  a  deed 
conveying  the  land  on  the  ground  that  it  had  not  been  delivered  where  the  an- 
swer avers  the  due  execution  of  the  contract  and  its  subsequent  ratification 
and  the  performance  of  the  agreement  by  defendant  and  the  delivery  of  the* 
deed,  and  prayed  for  judgment  for  possession,  a  reply,  containing  a  general 
denial,  and  pleading,  after  the  alleged  agreement,  that  defendant  and  the 
owners  of  the  land  to  be  exchanged  with  plaintiff  had  incumbered  it  by  grant- 
ing a  telephone  right  of  way  and  had  leased  the  land,  and  that  defendant  had 
no  title  to  the  premises,  does  not  set  up  a  new  cause  of  action,  but  pleads  de- 
fense that  the  contract  was  not  in  force  and  is  not  a  departure.  Snyder  v. 
Wheeler,  106  P.  462,  81  Kan.  508. 

oiDanielson  v.  Scott,  129  P.  1190.  88  Kan.  789. 

o2  Wampler  v.  Stemen,  80  Okl.  240,  195  P.  764. 

(527) 


§    646  PLEADINGS  (Ch.  11 

ARTICLE  VII 

FILING  AND  SUBSCRIBING 

Sections 

646.  Time  for  filing. 

647.  Additional  time — Withdrawal — Service  of  amendment- 

648.  Signing. 

§  646.     Time  for  filing 

"The  answer  or  demurrer,  by  the  defendant,  shall  be  filed  within 
twenty  days  after  the  day  on  which  the  summons  is  returnable ;  the 
reply  or  demurrer  shall  be  filed  within  thirty  days  after  the  day  on 
which  the  summons  was  made  returnable;  the  demurrer  to  the 
reply  shall  be  filed  within  forty  days  after  the  day  on  which  the 
summons  was  made  returnable."  53 

Where  there  has  been  a  service  of  summons  by  publication,  a 
subsequent  personal  service  on  defendant  voluntarily  within  the 
jurisdiction  supersedes  the  former  service  and  fixes  the  answer 
date.54 

A  pleading  filed  out  of  time  without  permission  or  agreement  is  a 
nullity.55 

It  has  been  the  policy  of  the  court  to  discourage  the  practice  of 
refusing  to  permit  defendants  to  file  an  answer  out  of  time  and  to 
give  litigants  their  day  in  court,  and  to  protect  parties  having  a 
valid  defense,  especially  where  they  are  ignorant  Indians.56 

After  a  defendant  in  default  has  been  allowed  to  answer,  and 
instead  of  doing  so  has  filed  a  motion  to  make  more  definite  and 
certain,  which  has  been  stricken  from  the  files,  and  the  case  called 
for  trial,  it  is  not  an  abuse  of  the  court's  discretion  to  refuse  to  al- 
low him  to  answer  then.57 

Where  defendant's  demurrer  is  overruled,  and  time  given  him  to 

ss  Rev.  Laws  1910,  §  4756. 

s*  Where  plaintiff,  a  resident,  sued  defendant,  a  resident  of  Texas,  and 
caused  service  of  summons  on  defendant  in  Texas,  requiring  answer  to  peti- 
tion' on  or  before  April  14,  1914,  such  service  being,  under  Rev.  Laws  1910,  § 
4727,  a  service  by  publication,  a  subsequent  personal  service  on  defendant  vol- 
untarily within  the  trial  court's  jurisdiction  superseded  the  former  summons 
and  fixed  the  answer  date.  Dickinson  v.  Foot  (Okl.)  173  P.  522. 

as  State  Nat.  Bank  v.  Lowenstein,  52  Okl.  259,  155  P.  1127. 

ss  McCoy  v.  Mayo  (Okl.)  174  P.  491. 

57  Missouri  Pac.  Ry.  Co.  v.  Linson,  18  P.  498,  39  Kan.  416. 

(528) 


Art.  7)  FILING  AND   SUBSCRIBING  §§    646~647 

file  his  answer,  but  he  does  not  file  it  in  time,  and  he  afterwards 
makes  application  for  further  time,  on  the  ground  that  papers 
necessary  to  drawing  the  answer  had  only  been  procured  a  few  days 
before,  but  no  answer  is  presented  with  the  application,  it  is 
within  the  discretion  of  the  trial  court  to  deny  such  application.58 

Defendant  cannot  complain  that  on  the  day  of  trial  plaintiff  was 
allowed  to  file  a  reply  to  the  answer.89 

§  647.     Additional  time — Withdrawal — Service  of  amendment 

"The  court,  or  any  judge  thereof  in  vacation,  may,  in  his  discre- 
tion, and  upon  such  terms  as  may  be  just,  allow  an  answer  or  reply 
to  be  made,  or  other  act  to  be  done,  after  the  time  limited  by  this 
article,  or  by  an  order  enlarge  such  time."  60 

The  granting  or  refusal  of  an  application  to  file  pleadings  out  of 
time  is  largely  in  discretion  of  trial  court.61 

This  discretion  is  dependent  upon  all  the  circumstances  and 
must  not  be  used  arbitrarily  or  capriciously.62 

While  .laches  in  filing  pleadings  should  not  be  encouraged,  the 
court  should  grant  permission  to  file  at  all  times  when  justice  re- 
quires it.63 

It  is  not  error  for  a  trial  court  to  permit  a  party  to  withdraw  an 
interplea.64 

Where  statements  or  admissions  in  a  pleading  against  his  interest 
were  made  by  a  party  or  his  counsel  under  an  honest  mistake  as  to 
the  facts,  and  he  desires  to  be  relieved  of  the  effects  thereof,  he 
should  apply  to  the  trial  court  for  leave  to  withdraw  such  admis- 
sion and  make  a  showing  of  good  faith  in  support  of  his  applica- 
tion.65 

Where  an  action  was  brought  by  two  coplaintiffs  and  on  demurrer 
the  court  ordered  separate  actions  to  be  brought  in  their  names,  and 

68  Merten  v.  Newforth,  25  P.  204,  44  Kan.  705. 

59  Sulzberger  &  Sons  Co.  of  Oklahoma  v.  Strickland,  60  Okl.  158,  159  P.  833. 

«o  Rev.  Laws  1910,  §  4757. 

61  City  of  Lawton  v.  Kelley,  62  Okl.  291,  162  P.  1081. 

Permission  to  file  pleadings  out  of  time  rests  tinder  Comp.  Laws  1909,  § 
5646,  in  the  discretion  of  the  court,  to  be  exercised  in  the  light  of  the  circum- 
stances. Long  v.  Harris,  132  P.  473,  37  Okl.  472. 

62  Checotah  Hardware  Co.  v.  Hensley,  141  P.  422,  42  Okl.  260. 

es  Peck  v.  First  Nat.  Bank  of  Claremore,  50  Okl.  252,  150  P.  1039. 
e*  Jackson  v.  Glaze,  41  P.  79,  3  Okl.  143. 
«s  Rogers  v.  Brown,  86  P.  443,  15  Okl.  524. 

HON.PX.&  PRAC.— 34  (529) 


§§  648-649  PLEADINGS  (Ch.  11 

in  filing  them  the  name  of  one  plaintiff  was  omitted,  an  amendment 
to  supply  such  name  was  a  compliance  with  the  order  that  separate 
actions  be  filed  in  the  name  of  both  plaintiffs,  and  service  of  amend- 
ment on  defendant  is  unnecessary  before  judgment  of  default  may 
be  rendered.66 

§  648.     Signing 

"Every  pleading,  in  a  court  of  record,  must  be  subscribed  by  the 
party  or  his  attorney."  67 

ARTICLE  VIII 

AMENDED  AND  SUPPLEMENTAL  PLEADINGS 

Sections 

649.  Amendment  before  answer. 

650.  Formal  defects. 

651.  Allowance  of  amendment — Discretion — Forms. 

652.  Variance. 

653.  Failure  of  proof. 

654.  Amendment  on  demurrer. 

655.  Continuance  after   amendment. 

656.  Notice  of  amendment- 

657.  Interlineation. 

658.  Subject-matter  of  amendment. 
659-  Supplemental  pleadings. 

660.     Lost  pleadings. 

§  649.     Amendment  before  answer 

"The  plaintiff  may  amend  his  petition  without  leave,  at  any  time 
before  the  answer  is  filed,  without  prejudice  to  the  proceedings; 
but  notice  of  such  amendment  shall  be  served  upon  the  defendant 
or  his  attorney,  and  the  defendant  shall  have  the  same  time  to  an- 
swer or  demur  thereto  as  to  the  original  petition."  6S 

The  provision  for  notice,  applies  only  to  voluntary  amendments, 
and  not  to  those  made  by  order  of  court  upon  motion  or  demurrer.69 

ee  National  Surety  Co.  v.  Oklahoma  Presbyterian  College  for  Girls,  38  Okl. 
429,  132  P.  652. 

67  Rev.  Laws  1910,  §  4758. 

68  Rev.  Laws  1910,  §  4787. 

Under  Code  Civ.  Proc.  §  137  (Gen.  St.  1915,  §  7029),  plaintiff,  before  an  an- 
swer is  filed,  may  amend  his  petition  as  to  subject-matter  and  parties  without 
leave  of  court.  Wagler  v.  Tobin,  104  Kan.  211,  178  P.  751. 

69  Harn  v.  Missouri  State  Life  Ins.  Co.  (Okl.)  173  P.  214. 

(530) 


Art.  8)  AMENDED  AND   SUPPLEMENTAL  PLEADINGS  §    650 

§  650.     Formal  defects 

"The  court  may,  before  or  after  judgment,  in  furtherance  of  jus- 
tice, and  on  such  terms  as  may  be  proper,  amend  any  pleading,  pro- 
cess or  proceeding  by  adding  or  striking  out  the  name  of  any  par- 
ty, or  correcting  a  mistake  in  the  name  of  a  party,  or  a  mistake  in 
any  other  respect,  or  by  inserting  other  allegations  material  to 
the  case,  or  conform  the  pleading  or  proceeding  to  the  facts  proved, 
when  such  amendment  does  not  change  substantially  the  claim  or 
defense ;  and  when  any  proceeding  fails  to  conform,  in  any  respect, 
to  the  provisions  of  this  Code,  the  court  may  permit  the  same  to 
be  made  conformable  thereto  by  amendment."  70 

Amendments  to  pleadings  may  be  allowed  in  furtherance  of  jus- 
tice when  they  do  not  substantially  change  the  cause  of  action  or 
defense;  this  change  not  referring  to  the  form  of  the  remedy,  but 
to  the  general  identity  of  the  transaction.71 

TO  Rev.  Laws  1910,  |  4790. 

71  Snider  v.  Windsor,  93  P.  600,  77  Kan.  67;  Ma  thews  v.  Sniggs,  75  Okl. 
108,  182  P.  703;  Bdmondston  v.  Porter  (Okl.)  162  P.  692;  Merchants'  &  Plant- 
ers' Ins.  Co.  v.  Crane,  128  P.  260,  36  Okl.  160;  Trower  v.  Roberts,  30  Okl. 
215,  120  P.  617. 

Amendments  may  he  allowed  before  or  after  judgment  by  inserting  allega- 
tions material  to  case  not  changing  substantially  plaintiff's  case.  Elliott  v. 
Coggswell,  56  Okl.  239,  155  P.  1146. 

Where,  in  an  action  against  a  city  to  recover  damages  caused  by  a  defec- 
tive sidewalk,  an  objection  is  made  at  the  trial  to  evidence  on  the  ground  that 
the  petition  did  not  show  where  the  injury  complained  of  occurred,  and  it 
appears  that  the  action  was  against  the  city,  and  the  petition  charged  that 
the  accident  occurred  on  North  Fifth  street  between  W.  and  N.  streets,  with- 
out stating  the  name  of  the  city,  it  was  not  error  to  permit  plaintiff  to  add 
by  way  of  amendment,  when  the  objection  was  raised,  "in  the  city  of  Guthrie. 
Logan  county,  O.  T."  City  of  Guthrie  v.  Finch,  75  P.  288,  13  Okl.  496. 

In  an  action  for  the  death  of  cattle  claimed  to  have  been  poisoned  by  drink- 
ing compound  escaping  from  poison  vats  maintained  by  defendant  railroad, 
the  allowance  of  an  amended  petition  after  the  close  of  the  evidence  held  not 
error.  Midland  Valley  R.  Co.  v.  Rippe,  61  Okl.  314,  161  P.  233. 

In  an  action  by  a  broker  for  commission,  held  not  error  to  permit  plaintiff 
during  the  trial  to  amend  his  petition  by  inserting  an  allegation  that  the 
amount  agreed  to  be  paid  was  the  usual  and  reasonable  commission  custo- 
marily paid  to  real  estate  agents.  Lowenstein  v.  Holmes,  40  Okl.  33,  135 
P.  727. 

When  an  action  to  enjoin  the  doing  of  an  act  which,  it  is  alleged,  would 
cause  irreparable  injury  to  plaintiff,  has  been  pending  in  the  district  court 
for  three  years,  it  is  not  error  to  refuse  plaintiff  leave  to  so  amend  his  peti- 
tion as  to  change  the  action  from  one  for  injunction  to  one  for  damages  sus- 

(531) 


§    650  PLEADINGS  (Ch.  11 

tained  since  the  commencement  of  the  action.  Dever  v.  City  of  Junction  City, 
47  P.  152,  5  Kan.  App.  180. 

There  is  no  error  in  permitting  plaintiff  to  amend  his  petition  by  striking 
out  allegation  that  deceased  employs  was  engaged  in  interstate  commerce  at 
time  of  injury.  Lusk  v.  Phelps  (Okl.)  175  P.  756. 

An  amended  and  supplemental  petition  in  an  action  for  damages  for  breach 
of  contract,  which  alleged  that  since  commencement  of  the  suit  the  matters 
in  controversy  had  been  submitted  to  arbitration,  and  defendant  had  been 
found  indebted  to  plaintiff  in  a  certain  sum  in  a  written  award  on  which 
plaintiff  prayed  judgment,  held  properly  allowed  in  view  of  Rev.  Laws  1910, 
§  4795.  Wynnewood  Cotton  Oil  Co.  v.  Moore,  54  Okl.  163,  153  Pi  633.  Under 
Rev.  Laws  1910,  §  4795,  amendments  are  liberally  allowed  in  the  furtherance 
of  justice,  even  though  they  change  the  cause  of  action,  provided  they  do  not 
substantially  change  plaintiff's  claim.  Id. 

Where  a  petition  in  an  action  against  a  railroad  company  for  damages  re- 
sulting from  fire  alleges  that  the  fire  was  negligently  communicated  from 
one  of  defendant's  engines  to  the  grass  growing  along  the  track,  it  is  not 
error  to  permit  an  amendment,  more  than  seven  years  after  the  filing  of  the 
original  petition,  by  adding  that  the  company  was  negligent  in  permitting 
dry  vegetation  to  accumulate  and  remain  on  the  right  of  way  where  the  fire 
was  set  out,  as  such  an  amendment  does  not  constitute  a  separate  and  dis- 
tinct cause  of  action.  St.  Louis  &  S.  F.  Ry.  Co.  v.  Ludlum,  66  P.  1045,  63 
Kan.  719. 

In  an  action  against  a  city  for  injuries  caused  by  a  defective  sewer,  an 
amendment  to  the  petition  showing  that  one  of  the  plaintiffs,  originally  al- 
leged to  be  an  owner,  had  no  interest  in  the  property,  was  not  material,  and 
did  not  change  the  cause  of  action,  as  under  the  Code  judgment  could  be 
rendered  for  or  against  one  of  several  plaintiffs.  Kansas  City  v.  King,  68  P. 
1093,  65  Kan.  64. 

Plaintiffs  sued  to  recover  damages  from  a  purchase  of  potatoes  sold  under 
a  guaranty  that  they  were  sound,  whereas  a  great  portion  was  unmerchanta- 
ble. They  amended  their  petition  to  allege  that  defendant  so  loaded  the  car 
that  plaintiff  could  inspect  only  the  top  before  they  were  compelled  to  pay, 
and  that  defendant,  fraudulently  to  deceive  plaintiff,  had  placed  on  top  of 
the  car  sound  potatoes  and  at  the  bottom  unmerchantable  potatoes.  Held, 
that  the  amendment  was  properly  allowed  under  X3omp.  Laws  1909,  §.  5679,  as 
it  did  not  change  substantially  the  claim  of  plaintiff.  Z.  J.  Fort  Produce  Co. 
v.  Southwestern  Grain  &  Produce  Co.,  108  P.  386,  26  Okl.  13. 

Where  the  petition  originally  alleged  that  plaintiff  was  working  and  digging 
in  a  ditch,  and  engaged  in  dressing  the  bottom  of  the  ditch,  which  was  about 
20  inches  wide  and  15  feet  deep,  and  the  ditch  and  banks,  or  side  walls,  were 
composed  of  loam,  sand,  and  dirt,  which  was  of  such  a  character  as  to  be 
predisposed  to  cave  in  and  slide  when  without  restraint,  and  that  defendants 
had  carelessly  failed  to  shore  up  the  walls  to  prevent  it  from  caving  in,  and 
that  the  plaintiff  was  inexperienced  and  ignorant  of  the  dangerous  character 
of  the  employment  and  of  the  inexperience  and  incompetency  of  his  employ- 
ers and  their  employes,  and  at  the  time  of  the  injuries  complained  of,  he  was 
pursuing  his  employment  in  the  usual  way  when,  without  fault  on  his  part, 
the  banks  of  the  ditch  caved  in  on  him,  there  was  no  error  in  permitting  an 
amendment  by  inserting  allegations  that  the  condition  of  the  embankment,  at 
the  time  of  the  injuries,  and  the  accumulated  dirt  and  other  substance  thrown 
thereon,  was  predisposed  to  slide  and  cave  in;  and  the  failure  of  the  defend- 

(532) 


Art.  8)  AMENDED   AND   SUPPLEMENTAL    PLEADINGS  §    651 

§  651.     Allowance  of  amendment — Discretion — Forms 

The  allowance  of  amendments  to  pleadings  is  within  the  sound 
discretion  of  the  trial  court,72  whether  before  or  at  commencement 

ants  to  remove  and  clear  away  the  same,  so  as  to  prevent  its  falling  into  the 
ditch  and  injuring  the  employe's,  concurred  with  the  other  careless  acts  al- 
leged to  bring  about  the  injuries  to  the  plaintiff.  Chas.  T.  Derr  Const.  Co.  v. 
Gelruth,  120  P.  253,  29  Okl.  538. 

Under  Rev.  Laws  1910,  §  4790,  allowing  amendments  not  substantially 
changing  the  claim  or  defense,  a  petition  alleging  failure  of  the  defendant 
city  treasurer  to  pay  over  money  belonging  to  the  city  may  be  amended  to 
set  out  that  defendant  converted  the  money  to  his  own  use.  Shipley  v.  City 
of  Lawton,  51  Okl.  575,  152  P.  119 ;  Missouri  Pac.  Ry.  Co.  v.  Henrie,  65  P. 
665,  63  Kan.  330. 

In  a  suit  on  a  written  contract  for  the  construction  of  a  building,  the  plain- 
tiff may  be  allowed  to  amend  at  the  trial  by  adding  a  quantum  meruit  count 
for  labor  and  materials  furnished.  School  Dist.  No.  2  in  Wabaunsee  County 
v.  Boyer,  26  P.  484,  46  Kan.  54. 

An  amendment  to  a  petition  by  inserting  an  allegation  affecting  plaintiff's 
eligibility  to  hold  the  office  is  properly  allowed,  where  it  is  in  furtherance 
of  justice,  and  does  not  substantially  change  plaintiff's  claim.  Lewis  v. 
Bandy,  45  Okl.  45,  144  P.  624. 

An  amendment,  stating  definitely  a  ground  of  negligence  which  was  stated 
in  the  original  petition  in  general  terms,  does  not  state  a  new  cause  of  action. 
Ballard  v.  Kansas  City,  M.  &  O.  Ry.  Co.,  148  P.  764,  95  Kan.  343. 

Where  the  petition  sets  forth  a  contract,  alleges  part  performance  by  plain- 
tiff and  breach  by  defendant,  and  demands  judgment  for  services  performed 
by  plaintiff,  etc.,  it  is  not  error  to  permit  an  amendment,  alleging  usual  price 
for  such  services  and  praying  judgment  for  reasonable  value  thereof.  Elwood 
Oil  &  Gas  Co.  v.  McCoy  (Okl.)  179  P.  2. 

One  who  seeks  to  cancel  a  mortgage  as  obtained  from  him  fraudulently  and 
as  having  been  fraudulently  altered  by  mortgagee  to  include  property  not  de- 
scribed therein  when  executed  does  not  change  his  cause  of  action  by  amend- 
ing his  petition  so  as  to  charge  that  the  mortgage  is  a  forgery  and  a  substi- 
tution for  the  mortgage  read  to  him  and  which  he  was  asked  to  sign.  Looka- 
baugh  v.  Bowmaker,  96  P.  651,  21  Okl.  489. 

72Cohee  v.  Turner  &  Wiggins,  132  P.  1082,  37  Okl.  778;  Joines  v.  Combs, 
132  P.  1115,  38  Okl.  380;  Offutt  v.  Wagoner,  120  P.  1018,  30  Okl.  458;  Her- 
ron  v.  M.  Rumley  Co.,  116  P.  952,  29  Okl.  317 ;  Trower  v.  Roberts,  120  P.  617, 
30  Okl.  215 ;  Alcorn  v.  Dennis;  105  P.  1012,  25  Okl.  135 ;  Kuchler  v.  Weaver, 
100  P.  915,  23  Okl.  420,  18  Ann.  Cas.  462 ;  Rogers  v.  Hodgson,  26  P.  732,  46 
Kan.  276;  Mitchell  v.  Ripley,  49  P.  153,  5  Kan.  App.  818;  Brokaw  v.  Bartley, 
€1  P.  320,  9  Kan.  App.  318 ;  Jantzen  v.  Emanuel  German  Baptist  Church,  112 
P.  1127,  27  Okl.  473,  Ann.  Cas.  1912C,  659 ;  Underwood  v.  Fosha,  133  P.  866, 
89  Kan.  768;  Shawnee-Tecumseh  Traction  Co.  v.  Wollard,  153  P.  1189,  54 
Okl.  432 ;  Wetmore  State  Bank  v.  Courter,  155  P.  27,  97  Kan.  178 ;  Scott  v. 
King,  152  P.  653,  96  Kan.  561;  Abmeyer  v.  German-American  State  Bank, 
179  P.  368,  103  Kan.  356;  Elliott  v.  Coggswell,  155  P.  1146,  56  Okl.  239. 

The  granting  of  permission  to  amend  petition  to  ask  for  additional  attor- 
ney's fees  is  within  the  sound  discretion  of  the  trial  court.  State  v.  Glass, 
160  P.  1145,  99  Kan.  159. 

(533) 


§    651  PLEADINGS  (Ch.  11 

of  trial,73  during  trial,74  or  before  or  after  judgment,  in  the  fur- 
therance of  justice,  where  they  do  not  change  substantially  the 
claim  or  defense,  is  in  the  discretion  of  the  trial  court.76 

73  McKee  v.  Jolly  (Okl.)  178  P.  656;  St.  Louis  &  S.  F.  R.  Co.  v.  Long,  137 
P.  1156,  41  Okl.  177,  Ann.  Gas.  1915C,  432 ;  Long  v.  Kansas  City,  M.  &  O.  R. 
Co.,  164  P.  175,  100  Kan.  361. 

Allowance  of  amendment  of  pleading  at  opening  of  trial,  setting  forth  ele- 
ment of  damages  from  facts  already  pleaded,  is  not  abuse  of  discretion,  espe- 
cially where  court  offered  continuance  to  make  preparation  to  meet  new  mat- 
ter. Western  Silo  Co.  v.  Carter,  158  P.  71,  98  Kan.  279. 

7*Maston  v.  Glen  Lumber  Co.  (Okl.)  163  P.  128;  American  Warehouse  Co. 
v.  Gordon,  139  P.  123,  41  Okl.  618 ;  Jones  v.  Phoenix  Ins.  Co.,  146  P.  354,  94 
Kan.  235;  Jones  v.  S.  H.  Kress  &  Co.,  153  P.  655,  54  Okl.  194;  McCullough 
v.  S.  J.  Hayde  Contracting  Co.,  109  P.  176,  82  Kan.  734. 

In  a  proceeding  to  settle  the  priorities  of  judgment  liens,  where  the  creditor 
whose  judgment  was  first  rendered  does  not  aver  that  a  levy  was  made  under 
his  judgment  within  a  year  from  its  rendition,  it  is  not  an  abuse  of  discre- 
tion to  allow  an  amendment  at  the  trial.  Excelsior  Mfg.  Co.  v.  Boyle,  26  P. 
408,  46  Kan.  202. 

An  application  to  make  amendments  to  a  petition  after  the  evidence  has 
been  closed  is  addressed  to  the  discretion  of  the  court.  Matson  v.  Chicago, 
R.  I.  &  P.  Ry.  Co.,  102  P.  254,  80  Kan.  272.  The  refusal  of  an  application, 
after  the  evidence  is  closed,  to  amend  a  petition  for  the  purpose  of  alleging 
an  additional  element  of  damages,  was  not  an  abuse  of  discretion,  where 
plaintiff  had  knowledge  of  such  facts  when  his  petition  was  filed,  and  no  rea- 
sonable excuse  was  given  for  not  including  them.  Id. 

70  City  of  Shawnee  v.  Slankard,  116  P.  803,  29  Okl.  133;  Merchants'  & 
Planters'  Ins.  Co.  v.  Crane,  128  P.  260,  36  Okl.  160;  Smith  v.  Rockett,  192 
P.  691,  79  Okl.  244:  Doty  v.  Shepard,  139  P.  1183,  92  Kan.  122,  rehearing 
denied  141  P.  1013,  92  Kan.  1041 ;  Keil  v.  Evans,  161  P.  639,  99  Kan.  273. 

While  court  under  Rev.  Laws  1910,  §  4790,  may,  before  or  after  judgment, 
in  furtherance  of  justice,  amend  any  pleading  to  conform  to  proof,  yet  as  a 
general  rule  the  allowance  of  such  amendments  is  in  court's  sound  judicial 
discretion.  Mackenzie  v.  City  of  Anadarko  (Okl.)  178  P.  483. 

Held  not  an  abuse  of  discretion. — It  is  not  an  abuse  of  discretion  to  per- 
mit, after  the  close  of  the  evidence,  an  amended  petition  to  be  filed  which 
does  not  substantially  change  the  cause  of  action  or  its  defense.  Midland 
Valley  R.  Co.  v.  Rippe,  61  Okl.  314,  161  P.  233. 

It  was  not  an  abuse  of  discretion  to  permit  the  plaintiff  in  a  divorce  suit  to 
amend  his  petition  so  as  to  allege  adultery  in  addition  to  cruelty  and  gross 
neglect  of  duty.  Penn  v.  Penn,  133  P.  207,  37  Okl.  650. 

Where  corporation  is  properly  before  court  to  answer  petition  naming  it 
correctly,  but  wrongly  alleging  state  of  its  incorporation,  amendment  to  prop- 
erly describe  such  corporation  is  justified.  Bishop-Babcock-Becker  Co.  v. 
Hyde,,  61  Okl.  250,  161  P.  172. 

In  an  action  for  divorce  and  alimony,  the  refusal  of  leave  to  file  a  third 
amended  plea  three  years  after  the  first  amended  petition,  which  was  filed 
when  plaintiff  knew  all  the  facts  as  to  the  title  to  property  sought  to  be 

(534) 


Art.  8)  AMENDED  AND   SUPPLEMENTAL  PLEADINGS  §   651 

Amendments  may  be  allowed  to  defeat  a  motion  for  judgment 
on  the  pleadings.76  ' 

An  amendment  of  a  petition,  introducing  a  new  and  distinct 
cause  of  action,  after  the  issues  have  been  joined  and  the  trial  be- 
gun, is  not  permissible  for  the  purpose  of  conforming  the  plead- 
ings to  the  facts  proved,  as  it  would  "change  substantially"  the 
claim  of  the  plaintiff.77 

Where  the  evidence  to  refute  plaintiff's  theory  would  sustain  a 
judgment  against  defendant  on  a  theory  which  might  have  been 
presented  by  plaintiff  in  another  count,  an  amendment  introduc- 
ing such  other  theory  ought  to  be  allowed.78 

Though  ordinarily  a  pleading  cannot  be  amended  after  verdict 
to  conform  to  proof  admitted  over  objection,  an  amendment  may 
be  allowed  to  prevent  a  final  judgment  against  a  party  because  of 
a  defect  in  his  pleading  which  has  been  supplied  by  evidence.79 

reached,  was  not  an  abuse  of  the  discretion  of  the  trial  court.     Lake  v. 
Winslow,  129  P.  863,  36  Okl.  679. 

Where  the  petition,  in  an  action  for  wrongful  death,  alleges  that  defendant 
committed  acts  amounting  to  wantonness,  but  characterized  such  acts  simply 
as  "negligence,"  it  is  not  error  to  permit  an  amendment  charging  wanton 
misconduct  in  express  terms,  even  after  the  limitation  period  has  expired. 
Harbert  v.  Kansas  City  Elevated  Ry.  Co.,  138  P.  641,  91  Kan.  605,  50  L.  R.  A. 
(N.  S.)  850. 

76  Mires  v.  Hogan,  79  Okl.  233,  192  P.  811. 

77  State  v.  Krause,  50  P.  882,  58  Kan.  651. 

Where  plaintiff  in  ejectment  alleged  that  he  was  the  owner  of  the  legal  and 
equitable  title,  he  does  not  allege  a  different  cause  of  action  in  an  amended 
petition,  alleging  that  he  was  the  owner  of  the  legal  title,  but  that  the  deed 
to  him  was  executed  as  a  mortgage,  and  that  the  condition  has  been  broken. 
Maddin  v.  Robertson,  38  Okl.  526,  133  P.  1128. 

Plaintiff,  whose  daughter  was  killed  through  the  alleged  negligence  of  de- 
fendants, brought  an  action  in  which  he  stated  a  common-law  liability  for 
loss  of  services  of  his  daughter,  but  the  averments  were  wholly  insufficient 
to  constitute  a  statutory  liability  for  her  death.  More  than  two  years  after 
the  negligent  injury,  he  asked  and  obtained  leave  to  amend  his  petition,  so 
as  to  state  a  cause  of  action  for  the  recovery  of  damages  for  death  under 
Civ.  Code,  §  422.  Held,  that  the  amendment  constituted  a  new  cause  of  action 
which  did  not  relate  back  to  the  commencement  of  the  action,  so  that  the 
cause  of  action  set  up  in  the  amendment  was  barred  by  limitations.  City  of 
Kansas  City  v.  Hart,  57  P.  938,  60  Kan.  684 ;  Simpson  v.  Same,  Id. 

78Harn  v.  Patterson,  58  Okl.  694,  160  P.  924. 

73  Sutter  v.  International  Harvester  Co.  of  America,  106  P.  29,  81  Kan.  452. 

In  an  action  on  a  policy  for  the  loss  sustained  by  the  destruction  of  the 
property  insured,  where  the  petition  alleges  the  value  of  said  property,  and 
the  jury  find  a  verdict  for  a  larger  sum,  it  Is  error  for  the  court,  after  ver- 

(535) 


§    651  PLEADINGS  (Ch.  11 

Amendments  should  ordinarily  be  allowed  on  request  therefor 
at  the  first  opportunity  after  the  necessity  appears.80 

The  allowance  or  refusal  of  a  belated  amendment  to  pleadings 
is  within  the  discretion  of  the  trial  court.81 

Refusal  to  permit  a  party  to  amend  after  one  trial  had  is  not  an 
abuse  of  the  court's  discretion ;  82  but  the  allowance  of  an  amend- 
ment after  trial  to  conform  the  petition  to  the  facts  proved  is  equiv- 
alent to  a  finding  of  fact  by  the  court,  and  the  order  will  not  be  re- 
versed on  appeal  because  apparently  against  the  weight  of  evi- 
dence, there  being  some  evidence  to  support  it.83 

When  a  petition  omits  an  averment  necessary  to  show  a  right  of 
action  in  plaintiff,  and  defendant  at  every  opportunity  throughout 
the  trial  objects  to  it,  and  to  the  reception  of  evidence  under  it  be- 
cause of  such  omission,  it  is  too  late,  after  verdict  in  plaintiff's  fa- 
vor and  the  filing  of  a  motion  for  a  new  trial  by  defendant,  to  cure 
the  defective  petition  by  amending  it  to  conform  to  the  facts 
proved.84 

An  agreement  between  the  parties  as  to  the  amount  of  recovery 
will  support  a  judgment  for  such  amount,  though  the  pleadings 
were  not  amended  to  correspond  with  the  agreement.85 

diet,  to  allow  plaintiff  to  amend  his  allegations  of  value  so  as  to  cover  the 
amount  of  the  verdict.  Home  Ins.  Co.  of  New  York  v.  Wagner,  57  P.  1049, 
9  Kan.  App.  93. 

so  Southwestern  Broom  &  Warehouse  Co.  v.  City  Nat.  Bank,  52  Okl.  422, 
153  P.  204.  4 

The  allowing  of  an  amendment  after  a  full  trial  of  a  declaration  seeking 
recovery  of  the  entire  amount  due  on  a  contract  for  the  purchase  of  cattle 
and  feed,  so  as  to  claim  recovery  for  the  portion  shown  to  have  been  deliv- 
ered should  not  be  denied  on  the  ground  of  surprise.  Snyder  v.  Rosenbaum, 
215  U.  S.  261,  30  S.  Ct.  73,  54  L.  Ed.  186,  aflfcrming  18  Okl.  168,  89  P.  222. 

si  German-American  State  Bank  v.  Badders,  152  P.  651,  96  Kan.  533 ;  State 
Bank  of  Eudora  v.  Brecheisen,  157  P.  259,  98  Kan.  193 ;  Pittman  &  Harrison 
Co.  v.  Hayes,  157  P.  1193,  98  Kan.  273. 

Where  the  petition  has  been  once  amended  and  there  has  been  considerable 
delay  before  the  case  came  to  trial,  and  a  demurrer  is  sustained  to  plaintiff's 
evidence,  it  is  not  an  abuse  of  discretion  to  then  refuse  to  permit  plaintiff 
to  amend  by  changing  the  cause  of  action  from  one  to  recover  a  forfeit  from 
a  stakeholder  to  one  for  damages  for  breach  of  contract.  Benfield  v.  Croson, 
136  P.  262,  90  Kan.  661. 

82Atchison  Sav.  Bank  v.  Means,  58  P.  989,  61  Kan.  857;  Cornelssen  v. 
Harman,  103  Kan.  624,  176  P.  141. 

83  Missouri  Pac.  Ry.  Co.  v.  McCally,  21  P.  574,  41  Kan.  639,  655.' 

s*  Walker  v.  O'Connell,  52  P.  894,  59  Kan.  306. 

so  Wilson  v.  Panne,  41  P.  984,  1  Kan,  App.  721. 

(536) 


Art.  8)  AMENDED   AND   SUPPLEMENTAL  PLEADINGS  §    651 

Allowance  of  amendment  to  answer  after  a  motion  to  reopen  case 
has  been  overruled,  in  order  to  plead  new  issues,  is  within  trial 
court's  discretion.88 

Where  defendant's  answer  admits  a  fact  essential  to  plaintiff's 
right  to  recover,  and  after  defendant  has  made  his  opening  state- 
ment not  inconsistent  with  such  admission,  and  after  motion  for 
peremptory  instruction  against  him,  the  court  may  in  its  discre- 
tion refuse  to  permit  him  to  amend  the  answer  by  denying  the  facts 
admitted.87 

It  is  not  abuse  of  discretion  to  refuse,  after  impaneling  of  jury, 
to  allow  answer  alleging  personal  contributory  negligence  to  be 
amended  so  as  to  charge  also  imputed  negligence.88 

It  is  within  the  court's  discretion  to  refuse  permission  to  file  a 
second  amended  answer.89 

It  is  not  an  abuse  of  discretion  to  refuse  during  the  trial  of  a 
cause  an  amendment  to  an  answer  which  sets  up  a  new  defense, 
where  no  reason  is  given  therefor  other  than  that  the  trial  court 
refused  to  allow  the  evidence  to  be  introduced  under  a  general 
denial.90 

An  answer  cannot  be  amended  to  conform  to  the  proof,  where 
the  proof  supporting  the  amendment  was  immaterial,  incompetent, 
and  introduced  over  plaintiff's  objection.91 

Where  a  civil  action  is  tried  before  a  district  judge  without  a 
jury,  and  special  findings  are  made  and  filed  by  the  judge,  even 
if  there  be  a  variance  between  the  allegations  of  the  answer  and 
the  facts  proven  upon  the  trial,  yet  if  it  be  a  case  where  an  amend- 
ment of  the  answer  ought  to  have  been  allowed  to  conform  to  the 
facts  proved,  the  judgment  will  not  be  reversed  on  account  of  such 
variance;  but,  instead  thereof,  the  answer  will  be  considered  as 
amended  to  conform  to  the  facts  proved  and  found.92 

se  Randall  v.  Randall,  166  P.  516,  101  Kan.  341. 

ST  First  State  Bank  of  Keota  v.  Bridges,  39  Okl.  355,  135  P.  378. 

SB  Angell  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  156  P.  763,  97  Kan.  688,  rehearing 
denied  157  P.  1196,  98  Kan.  268. 

8»  St.  Francis  Land  &  Abstract  Co.  v.  Rathburn,  114  P.  862,  84  Kan.  664. 

90  Piper  v.  Choctaw  Northern  Townsite  &  Improvement  Co.,  85  P.  965,  16 
Okl.  436. 

»i  Northwest  Thresher  Co.  v.  McNinch,  140  P.  1170,  42  Okl.  155;  Same  v. 
Pruitt,  140  P.  1173,  42  Okl.  163 ;  Same  v.  Bell,  140  P.  1174,  42  Okl.  164 ;  Same 
v.  Long,  141  P.  4,  42  Okl.  165;  Same  v.  Washichek,  141  P.  4,  42  Okl.  166; 
Same  v.  Minium,  141  P.  5,  42  Okl.  168 ;  Same  v.  Basey,  141  P.  5,  42  Okl.  169. 

92  Wilcox  &  White  Organ  Co.  v.  Lasley,  20  P.  228,  40  Kan.  521. 

(537)    ' 


§    651  PLEADINGS  (Ch.  11 

Imposition  of  terms  on  granting  leave  to  amend  is  a  matter  rest- 
ing in  the  sound  discretion  of  the  court.83 

Permitting  defendant  to  amend  to  allege  mutual  mistake  of 
law,  after  the  evidence  was  closed,  witnesses  were  discharged,  the 
jury  instructed,  and  counsel  for  defendant  had  made  his  opening 
argument,  plaintiff  not  being  granted  a  continuance,  is  an  abuse  of 
the  discretion  vested  in  the  court.94 

It  is  no  abuse  of  discretion  to  permit  an  amended  reply,  which 
does  not  change  issues,  to  be  filed  before  final  judgment.95 

It  is  error  to  allow  a  pleading  to  be  amended  in  a  material  re- 
spect and  render  judgment  thereon  without  notice  to,  and  in  the 
absence  of,  the  adverse  party.96 

In  order  to  take  advantage  of  a  ruling  on  a  demurrer  when  such 
demurrer  is  sustained,  the  party  must  stand  upon  his  pleading 
held  to  be  defective,  and  not  amend.97 


MOTION  FOR  LEAVE  TO  AMEND  PETITION 

(Caption.) 

Come  now  the  plaintiffs  and  ask  leave  of  court  to  amend  their 
petition  by  interlineation  or  by  attaching  to  the  bottom  of  page 

of  said  petition  the  following  paragraph,  to  wit:     (Here 

set  forth  amendments  desired.) 

Wherefore  plaintiffs  pray  that  they  be  permitted  to  amend  said 
petition  as  above  stated. 

,  Attorneys  for  Plaintiffs. 

ORDER   ALLOWING  AMENDMENT   TO   PETITION 

(Caption.) 

Now  on  this  4th  day  of  September,  1917,  this  cause  coming  on 
for  hearing  on  the  motion  of  plaintiffs  to  amend  the  petition  filed 

»3  Pappe  v.  Post,  101  P.  1055,  23  Okl.  581. 

94  Northwest  Thresher  Co.  v.  McNinch,  140  P.  1170,  42  Okl.  155 ;  Same  v. 
Pruitt,  140  P.  1173,  42  Okl.  163;  Same  v.  Bell,  140  P.  1174,  42  Okl.  164; 
Same  v.  Long,  141  P.  4,  42  Okl.  165;  Same  v.  Washichek,  141  P.  4,  42  Okl. 
166;  Same  v.  Minium,  141  P.  5,  42  Okl.  168;  Same  v.  Basey,  141  P.  5,  42 
Okl.  169. 

as  Ely  v.  Pool,  60  Okl.  77,  159  P.  511. 

so  Kansas  City,  L.  &  S.  R.  Co.  v.  Richolson,  1  P.  138,  31  Kan.  28;  Kansas 
City,  L.  &  S.  R.  Co.  v.  Richolson,  1  P.  138,  31  Kan.  28. 

97  Berry  v.  Barton,  71  P.  1074,  12  Okl.  221,  66  L.  R.  A.  513. 

(538) 


Art.  8)  AMENDED  AND  SUPPLEMENTAL  PLEADINGS        §§   651-652 

herein,  after  due  consideration  the  court  finds  that  plaintiffs  ace 
entitled  to  amend  said  petition  as  stated  in  said  motion. 

It  is  therefore  ordered  and  decreed  that  plaintiffs  be  and  they 
are  hereby  given  authority  to  amend  their  petition  as  stated  in 
their  motion,  by  (here  set  out  amendments  to  be  made). 

Said  amendments  to  be  made  not  later  than ,  and  defend- 
ants given days  to  file  amended  answer. 

,  Judge. 

§  652.     Variance 

"No  variance  between  the  allegations,  in  a  pleading,  and  the 
proof,  is  to  be  deemed  material,  unless  it  has  actually  misled  the 
adverse  party,  to  his  prejudice,  in  maintaining  his  action  or  de- 
fense upon  the  merits.  Whenever  it  is  alleged  that  a  party  has 
been  so  misled,  that  fact  must  be  proved  to  the  satisfaction  of  the 
court,  and  it  must  also  be  shown  in  what  respect  he  has  been  mis- 
led, and  thereupon  the  court  may  order  the  pleading  to  be  amended, 
upon  such  terms  as  may  be  just."98 

Plaintiff  before  judgment  may  properly  be  permitted  to  amend 
his  declaration  to  conform  to  the  facts  proved,  where  such  amend- 
ment does  not  substantially  change  the  cause  of  action." 


as  Rev.  Laws  1910,  §  4784. 

Giving  of  instruction  to  find  for  defendant  if  the  evidence  showed  that  the 
date  of  the  conversion  was  different  from  that  alleged  in  bill  of  particulars 
held  error  in  view  of  Rev.  Laws  1910,  §  4784  et  seq.  Missouri,  O.  &  G.  Ry. 
Co.  v.  Diamond,  48  Okl.  424,  150  P.  175. 

»»Lookabaugh  v.  Bowmaker,  96  P.  651,  21  Okl.  489;  Elwood  Oil  &  Gas 
Co.  v.  Gano,  76  Okl.  287,  185  P.  443 ;  Fitzgerald  v.  Hollan,  24  P.  957,  44  Kan. 
499 ;  Fulsom-Morris  Coal  &  Mining  Co.  v.  Mitchell,  132  P.  1103,  37  Okl.  575 ; 
Binion  v.  Lyle,  114  P.  618,  28  Okl.  430;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Hard- 
wick,  115  P.  471,  28  Okl.  577. 

In  action  for  amount  due  for  drilling  an  oil  well  under  an  oral  contract 
to  pay  $1.50  per  foot,  an  amendment,  alleging  that  defendant  agreed  to  pay 
the  customary  price  for  drilling  such  well  in  the  locality,  which  was  $1.50 
per  foot,  simply  pleading  more  specifically  the  contract  alleged  to  have  been 
made  did  not  contravene  the  rule  against  pleading  a  special  contract  and  at- 
tempting a  recovery  upon  a  quantum  meruit.  Elwood  Oil  &  Gas  Co.  v.  Gano, 
76  Okl.  287,  185  P.  443. 

Amendment  of  pleading  to  correspond  with  the  proof  will  not  be  reversed, 
where  no  prejudice  is  shown.  Coley  v.  Johnson,  121  P.  271,  32  Okl.  102. 

In  an  action  for  personal  injuries,  the  plaintiff  offered  evidence  as  to  the 
expenses  incurred  for  medical  attention,  medicines,  etc.  This  was  objected 
to  on  the  ground  that  such  issue  was  not  raised  by  the  pleadings.  The 
pleadings  were  then  permitted  to  be  so  amended,  when  the  evidence  was  ad- 

(539) 


§    652  PLEADINGS  (Ch.  11 

Defendant  may  likewise  be  permitted  to  amend.1' 
"When  the  variance  is  not  material,    *    *    *    the  court  may  di- 
rect the  fact  to  be  found,  according  to  the  evidence,  and  may  or- 
der an  immediate  amendment  without  cost."  2 

mitted.  Held,  not  to  be  an  abuse  of  discretion.  Chas.  T.  Derr  Const.  Co.  v. 
Gelruth,  120  P.  253,  29  Okl.  538. 

Where  a  petition,  intended  to  state  a  caus-e  of  action  for  false  imprison- 
ment, fails  to  do  so,  but  sufficiently  states  a  cause  of  action  for  malicious 
prosecution,  and  the  evidence  clearly  shows  false  imprisonment,  and  the  de- 
fendant is  not  misled,  held,  that  the  petition  might  be  amended  at  any  time 
during  the  trial  so  as  to  state  a  cause  of  action  for  false  imprisonment. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Rice,  14  P.  229,  36  Kan.  593. 

In  action  for  agreed  price  of  drilling  an  oil  well,  with  counterclaim  for 
plaintiff's  negligence  in  destroying  well,  wherein  defendant's  pleading  was  not 
explicitly  in  conflict  with  the  evidence,  but  was  merely  ambiguous  and  indefi- 
nite, and  where  plaintiff  was  not  taken  by  surprise,  an  amendment  should 
have  been  allowed.  Gates  v.  Little  Fay  Oil  Co.,  105  Kan.  46,  181  P.  570. 

Where  petition  alleged  note's  transfer  to  plaintiff  in  due  course  but  copy 
of  note  showed  no  written  indorsement,  and  where  evidence  of  transfer  by 
indorsement  before  maturity  was  received  without  objection,  court,  on  objec- 
tion to  sufficiency  of  petition,  should  have  allowed  amendment  to  conform  to 
proof.  Stevens  v.  Vermillion,  102  Kan.  408,  170  P.  807. 

A  trial  amendment  in  an  action  for  recovery  of  rents  due  on  farm  land, 

1  Plaintiff  commenced  an  action  to  recover  judgment  on  three  promissory 
notes.    The  defendants  pleaded,  in  substance,  a  failure  of  consideration,  and 
asked  that  the  notes  be  canceled.    After  the  evidence  was  closed,  defendants 
were  permitted  to  amend  their  answer  by  an  averment  that  sis  other  promis- 
sory notes  were  given  with  those  mentioned  in  the  petition,  for  the  same 
purpose,  and  as  a  part  of  the  same  transaction,  and  praying  that  they  be 
canceled  also.    Held  not  error  to  permit  such  amendment ;   it  clearly  appear- 
ing from  the  undisputed  evidence  given  in  the  case  that  such  averments  were 
true.    Minneapolis  Threshing  Mach.  Co.  v.  Currey,  89  Jf!  688,  75  Kan.  365. 

Where  the  answer,  in  an  action  for  damages  from  eating  tainted  meat,  ad- 
mitted that  plaintiff  was  employed  by  the  "defendants,"  and  the  uncontra- 
dicted  evidence  showed  that  he  was  employed  by  only  one,  defendants  should 
have  been  permitted  to  amend  their  answer  to  conform  to  the  proof.  Malone 
v.  Jones,  139  P.  387,  91  Kan.  815,  L.  R.  A.  1915A,  328,  rehearing  granted  139 
P.  1199,  and  judgment  affirmed  on  rehearing  142  P.  274,  92  Kan.  708,  L.  R.  A. 
1915A,  331. 

Where,  in  an  action  for  conversion,  the  answer  was  a  general  denial,  and 
evidence  tending  to  show  purchase  and  payment  was  excluded  because  not 
within  the  issues,  an  application  for  permission  to  amend  to  plead  purchase 
and  payment  was  improperly  denied.  American  Warehouse  Co.  v.  Gordon, 
139  P.  123,  41  Okl.  618. 

2  Rev.  Laws  1910,  §  4785. 

Where  a  petition  on  a  fire  policy  alleges  a  written  settlement,  oral  proof 
of  a  parol  settlement  is  not  a  total  failure  of  proof  within  Comp.  Laws  1909, 
§  5675,  but  a  variance  within  sections  5673  and  5674,  permitting  amendments. 
Merchants'  &  Planters'  Ins.  Co.  v.  Crane,  128  P.  260,  36  Okl.  160. 

(540) 


Art.  8)  AMENDED  AND   SUPPLEMENTAL  PLEADINGS         §§    653~654 

§  653.    Failure  of  proof 

"When,  however,  the  allegation  of  the  claim  or  defense,  to 
which  the  proof  is  directed,  is  unproved,  not  in  some  particular 
or  particulars  only,  but  in  its  general  scope  and  meaning,  it  is  not  to 
be  deemed  a  case  of  variance,  *  *  *  but  a  failure  of  proof."  * 

§  654.     Amendment  on  demurrer 

"At  any  time  within  ten  days  after  the  demurrer  is  filed,  the  ad- 
verse party  may  amend,  of  course,  on  payment  of  costs  since  filing 

which  was  in  the  furtherance  of  justice  to  conform  allegation  to  proof,  is 
properly  allowed,  particularly  where  not  excepted  to.  Fruitt  v.  Carter,  52 
Okl.  284,  152  P.  1081. 

In  an  action  on  a  fire  insurance  policy,  where,  after  several  months'  de- 
fault, defendant,  on  leave  of  court,  files  an  answer,  on  which  trial  is  had 
nearly  two  years  after  the  loss,  and  while  plaintiff's  testimony  is  being  taken 
defendant  asks  leave  to  amend  its  answer  and  introduce  a  new  defense,  but 
makes  no  showing  as  to  the  truth  of  such  defense,  nor  explains  its  delay, 
such  leave  may  be  properly  refused.  Kansas  larmers'  Mut.  Fire  Ins.  Co. 
v.  Amick,  14  P.  454,  37  Kan.  73. 

Where,  on  foreclosure  of  subcontractors'  liens,  it  appeared  that  the  con- 
tractor was  really  the  owners'  agent,  the  court  properly  permitted  amend- 
ments to  the  petition  to  conform  to  such  proof.  Southwestern  Paint  &  Wall 
Paper  Co.  v.  Perkins,  136  P.  324,  90  Kan.  725. 

Where  plaintiff  in  replevin  alleged  ownership  and  right  of  possession  under 
a  chattel  mortgage  and  the  court  found  that  plaintiff  had  the  right  of  pos- 
session, though  not  under  the  chattel  mortgage,  held  that  plaintiff's  motion 
to  amend  its  petition,  under  Gen.  St.  1909,  §  5733  (Code  Civ.  Proc.  §  140),  to 
conform  to  the  evidence,  and  for  judgment,  should  have  been  sustained. 
Phillips  County  Bank  v.  Lowe,  137  P.  930,  91  Kan.  338. 

In  an  action  to  foreclose  a  mortgage  in  which  a  defendant  claimed  that  the 
mortgage  was  part  of  the  assets  of  a  partnership  composed  of  himself  and 
plaintiff,  and  the  evidence  showed  that  the  owner  was  an  innocent  purchaser 
who  had  given  a  mortgage  to  such  defendant,  and  that  such  defendant  was 
not  entitled  to  the  mortgage,  an  amendment  to  conform  the  petition  to  such 
situation  and  to  pray  that  plaintiff  be  subrogated  to  such  defendant's  rights 
in  the  mortgage  was  properly  allowed  after  judgment.  Winfrey  v.  Clapp, 
122  P.  1055,  86  Kan.  887. 

When  a  petition  claiming  damages  is  not  demurrable  for  insufficiency  in  its 
statements  of  fact  to  constitute  a  cause  of  action,  but  is  only  subject  to  a 
motion  to  make  it  more  definite  and  certain  as  to  the  allegations  ef  damage 
sustained,  and  upon  it  a  first  trial  is  had,  in  the  course  of  which  the  plaintiff 
makes  a  full  disclosure  of  the  several  items  constituting  his  demand,  it  is 
not  error  upon  a  second  trial,  and  at  the  close  of  the  plaintiff's  evidence, 
during  which  the  same  disclosures  were  made,  to  allow  the  petition  to  be 
amended  by  setting  out  the  various  items  of  damages  claimed  so  as  to  con- 
form to  the  evidence  given.  Walker  v.  O'Connell,  52  P.  894,  59  Kan.  306, 
distinguished.  Tullock  v.  Mulvane,  60  P.  749,  61  Kan.  650,  judgment  reversed 
22  S.  Ct.  372,  184  U.-  S.  497,  46  L.  Ed.  657. 

s  Rev.  Laws  1910,  §  4786. 

(541) 


§§  654-656  PLEADINGS  (Ch.  11 

the  defective  pleading.  Notice  of  the  filing  of  an  amended  plead- 
ing shall  be  forthwith  served  upo?  the  other  party  or  his  attor- 
ney, who  shall  have  the  same  time  thereafter  to  answer  or  reply 
thereto,  as  to  an  original  pleading."  * 

"Upon  a  demurrer  being  overruled  the  party  who  demurred  may 
answer  or  reply,  if  the  court  be  satisfied  that  he  has  a  meritorious 
claim  or  defense,  and  did  not  demur  for  delay."  5 
x  "If  the  demurrer  be  sustained,  the  adverse  party  may  amend, 
if  the  defect  can  be  remedied  by  way  of  amendment,  with  or  with- 
out costs,  as  the  court,  in  its  discretion,  shall  direct."  6 

§  655.     Continuance  after  amendment 

"When  either  party  shall  amend  any  pleading  or  proceeding,  and 
the  court  shall  be  satisfied,  by  affidavit  or  otherwise,  that  the  ad- 
verse party  could  not  be  ready  for  trial,  in  consequence  thereof,  a 
continuance  may  be  granted  to  some  day  in  term,  or  to  another 
term  of  the  court."  7 

§  656.     Notice  of  amendment 

Where  the  filing  of  an  amended  petition  is  an  abandonment  of 
the  original  petition  and  sets  out  a  new  cause  of  action,  and  seeks 
relief  not  prayed  for  in  the  original  petition,  notice  to  defendant  or 
his  attorney  is  essential  to  give  the  court  jurisdiction  to  render 
judgment  thereon.8 

*  Rev.  Laws  1910,  §  4788. 

Under  Comp.  Laws  1909,  §  5677  (St.  1893,  §  4015),  providing  that  at  any 
time  within  10  days  after  a  demurrer  is  filed  the  adverse  party  may  amend 
of  course  on  payment  of  costs  accrued  since  filing  the  defective  pleading, 
and  Comp.  Laws  1909,  §  5679  (St.  1893,  §  4017),  authorizing  the  court,  on 
such  terms  as  may  be  proper,  to  amend  any  pleading,  when  the  amendment 
does  not  substantially  change  the  claim  on  defense,  the  court  is  not  only 
authorized  to  permit  an  amendment,  but  may  require  the  payment  of  accrued 
costs  as  a  condition  thereto.  Herron  v.  M.  Rumsley  Co.,  116  P.  952,  29  Okl. 
317. 

5  Rev.  Laws  1910,  §  4789. 

e  Rev.  Laws  1910,  §  4792. 

7  Rev.  Laws  1910,  §  4793. 

s  Lausten  v.  Lausten,  55  Okl.  518,  154  P.  1182. 

(542) 


Art.  8)  AMENDED  AND   SUPPLEMENTAL  PLEADINGS        §§    657~658 

§  657.     Interlineation 

It  is  not  error  to  permit  amendment  of  petition  by  interlineation, 
where  it  does  not  substantially  change  plaintiff's  claim  and  no  ap- 
parent prejudice  results  to  defendant.9 

§  658.     Subject-matter  of  amendment 

Amendments  of  pleadings  may  be  allowed  in  furtherance  of  jus- 
tice, when  they  do  not  substantially  change  cause  of  action  or 
defense,  regardless  of  change  in  form  of  remedy.10 

An  amended  pleading  containing  a  definite  statement  of  facts 
concerning  a  material  matter  not  in  conflict  with  the  general  aver- 
ment respecting  the  same  subject  contained  in  the  original  petition 
does  not  state  a  new  cause  of  action,  but  is  only  an  amplification 
of  the  facts  constituting  the  first  one  pleaded.11 

A  petition  which  fails  to  state  a  cause  of  action  may  be  amend- 
ed, though  some  of  the  defendants  reside  outside  the  county  and 
are  attacking  the  court's  jurisdiction.12 

It  is  not  error -to  permit  an  amendment  which  pleads  an  addition- 
al cause  of  action  growing  out  of  the  same  transaction,  but  does  not 
substantially  change  the  claim.13 

Whether  the  cause  of  action  sued  on  originally  is  the  same  as 


»McKee  v.  Jolly  (Okl.)  178  P.  656. 

Under  Civ.  Code  Kan.  §  140  (Gen.  St.  Kan.  1915,  §  7032),  granting  permission 
to  amend  petition  during  trial  by  interlineation,  increasing  sum  sued  for, 
where  defendant  objected,  but  requested  no  delay,  and  proceeded  with  trial, 
has  been  held  no  error.  Ring  v.  Phoenix  Assur.  Co.,  Limited,  of  London,  164 
P.  303,  100  Kan.  341. 

10  B.  Van  Winkle  Gin  &  Machine  Works  v.  Brooks,  53  Okl.  411,  156  P.  1152. 
Plaintiffs   sued   defendant   for   damages   for   false   representations   in  the 

sale  to  them  by  him  of  a  horse.  At  the  trial,  after  all  the  evidence  had  been' 
introduced,  but  before  argument,  the  court  gave  plaintiffs  leave  to  amend 
the  petition,  and  granted  a  continuance,  imposing  on  plaintiffs  aU  the  costs 
up  to  the  time  of  the  amendment.  The  amended  petition  alleged  that  de- 
fendant expressly  warranted,  the  horse.  Held,  that  allowing  the  amend- 
ment was  not  error,  under  Civ.  Code,  §  139,  providing  that  the  court  may 
allow  an  amendment  "in  furtherance  of  justice,  and  on  such  terms  as  may 
be  proper,"  when  the  amendment  does  "not  change  substantially  the  claim 
or  defense."  Culp  v.  Steere,  28  P.  987,  47  Kan.  746. 

11  Wilbers  v.  Ronnau,  107  P.  772,  82  Kan.  171. 

12  Wells  v.  Hansen,  154  P.  1033,  97  Kan.  305,  L.  R.  A.  1916F,  566,  Ann.  Cas. 
1918D,  230. 

is  St.  Louis  &  S.  F.  Ry.  Co.  v.  Keiffer,  48  Okl.  434,  150  P.  102fi. 

(543) 


§    658  PLEADINGS  (Ch.  11 

that  set  out  in  an  amended  petition  is  to  be  determined  by  the 
averments  of  the  pleadings,  and  not  by  testimony  of  what  the 
pleader  intended  the  pleadings  should  contain.14 

Amendments  to  correct  mistakes  or  defects  in  pleadings  should 
be  liberally  allowed,  where  they  will  promote  justice  and  not  sub- 
stantially change  the  claims  or  defenses.15  But  an  application  to 
amend  a  petition  made  when  the  case  is  called  for  trial  may  be 
properly  denied  where  the  materiality  of  the  proposed  amendments 
is  not  made  to  appear,  nor  the  reasonable  necessity  thereof.18 

Where  personal  service  is  made  on  one  defendant,  and  another, 
against  whom  no  personal  judgment  is  asked,  is  served  by  publica- 
tion, and  the  latter  makes  a  general  appearance,  it  is  proper  to  al- 
low the  original  petition  to  be  amended  so*  as  to  charge  such  defend- 
ant personally.17 

The  filing  of  a  complete  amended  petition  after  service  or  at- 
tempted service  and  before  answer,  is  an  abandonment  of  the  orig- 
inal petition.18 

Where  an  amended  petition  is  filed,  and  no  part  of  the  original 
petition  is  referred  to  or  adopted  therein,  such  original  petition  is 
superseded  and  is  no  part  of  the  record,  and  while  it  may  be  in- 
troduced in  evidence  by  the  adverse  party  the  same  as  any  other 
writing  signed  by  the  party,  subject  to  be  explained,  its  contents 
cannot  be  considered  on  the  trial  either  as  part  of  the  record  or  as 
admissions  of  plaintiff,  unless  introduced  in  evidence.19 

Plaintiff  may  amend  his  petition  at  any  time  before  answer  is 
filed  to  increase  his  demand  for  relief,20  or  by  reducing  claim  for 

i*  City  of  Kansas  City  v.  Hart,  57  P.  938,  60  Kan.  684 ;   Simpson  v.  Same,  Id. 

is  Woods  v.  Nicholas,  140  P.  862,  92  Kan.  258. 

ie  Federal  Betterment  Co.  v.  Reeves,  93  P.  627,  77  Kan.  Ill,  15  Ann.  Cas. 
796. 

i?  Beebe  v.  Carter,  38  P.  278,  54  Kan.  261. 

is  Lausten  v.  Lausten,  55  Okl.  518,  154  P.  1182. 

The  filing  of  an  amended  pleading  takes  from  the  record  the  original  plead- 
ing. Brown  v.  Galena  Mining  &  Smelting  Co.,  4  P.  1013,  32  Kan.  528. 

is  Lane  v.  Choctaw,  O.  &  G.  R.  Co.,  91  P.  883,  19  Okl.  324;  Territory  v. 
Woolsey,  130  P.  934,  35  Okl.  545;  Gaar,  Scott  &  Co.  v.  Rogers,  46  Okl.  67, 
148  P.  161. 

20  Willis  v.  Cochran  (Okl.)  168  P.  658. 

In  an  action  against  a  prior  guardian  and  his  sureties,  plaintiff  praying 
for  the  amount  of  the  bond,  he  was  entitled  to  amend  to  conform  to  evidence 

(544) 


Art.  8)  AMENDED   AND   SUPPLEMENTAL   PLEADINGS  §    658 

damages,21  or  by  striking  out  a  claim  for  judgment  against  one  of 
the  defendants.22 

The  right  to  amend  a  petition  by  increasing  ad  damnum  and 
joining  a  party  plaintiff  is  absolute,  and  it  is  reversible  error  to 
strike  such  an  amended  petition  from  the  files.28 

Amendments  which  substantially  change  the  claim  previously 
relied  on  will  not  be  permitted.2* 

One  who  seeks  to  rescind  a  contract  for  the  exchange  of  land, 
by  an  action  in  the  county  in  which  the  land  is  situated,  against 
persons  who  reside  elsewhere,  cannot,  after  they  have  been  sum- 
moned and  appear,  amend  his  petition  by  adding  a  second  cause  of 
action  for  damages  for  breach  of  covenant  of  warranty  and  thus 
blend  a  local  with  a  transitory  cause  of  action,  but  must  be  confin- 
ed to  the  cause  of  action  that  authorizes  the  service  made.25 

The  amendment  of  a  petition  by  striking  out  certain  words  from 
the  title  of  plaintiff,  and  making  the  same  amendment  in  the  peti- 
tion, does  not  change  substantially  the  cause  of  action,  and  will 
relate  back  to  the  date  of  the  original  petition.26 

The  rule  permitting  amendments  permits  amendment  of  an  ex- 
hibit to  a  pleading,27  of  the  reference  in  the  pleading  to  the  ex- 
supporting  a  finding  for  a  larger  sum  found  to  be  due.  Charles  v.  Witt,  129 
P.  140,  88  Kan.  484. 

Plaintiffs  alleged  that  defendants  engaged  to  sell  plaintiffs'  land  at  $4,000 
for  a  commission  of  $125,  but  that  if  only  $3,900  could  be  obtained,  the  com- 
mission should  be  $100.  The  land  sold  for  $4,000,  but  defendants  fraudulent- 
ly represented  that  only  $3,900  was  obtained,  that  plaintiffs  paid  the  defend- 
ants a  commission  of  $100,  and  that  they  fraudulently  converted  $100  of  the 
price  paid  for  the  land,  and  asked  judgment  for  $75.  Later  plaintiffs  were 
permitted  to  amend  their  petition  by  alleging  that  defendants  through  their 
fraud  forfeited  all  rights  to  commission,  and  asked  for  recovery  of  commis- 
sion paid  and  the  remainder  of  the  price.  Held,  that  the  amendment  was 
properly  allowed.  Deter  v.  Jackson,  92  P.  546,  76  Kan.  568. 

21  Lusk  v.  Phelps  (Okl.)  175  P.  756. 

22  Mulvane  v.  Sedgley,  61  P.  971,  10  Kan.  App.  574,  judgment  affirmed  64 
P.  1038,  63  Kan.  105,  55  L.  R.  A.  552. 

23  Willis  v.  Cochran  (Okl.)  168  P.  658. 

24  Jewett  v.  Malott,  57  P.  100,  60  Kan.  509. 

25  Neal  v.  Reynolds,  16  P.  785,  38  Kan.  432. 

26  American  Bonding  Co.  of  Baltimore  v.  Dickey,  88  P.  66,  74  Kan.  791. 

27  Where  it  appeared  at  trial  that  there  was  some  slight  variation  between 
original  mortgage  and  copy  attached  to  plaintiff's  petition,  amendment  by  at- 
taching correct  copy  as  exhibit  was  permitted  by  Rev.  Laws  1910,  §  4784. 
Chase  v.  Cable  Co.  '(Okl.)  170  P.  1172. 

(545) 


§    658  PLEADINGS  (Ch.  11 

hibit,28  of  words  descriptive  of  plaintiff,29  of  the  description  of 
the  property  involved  in  the  suit,30  and  of  the  name  of  the  court 
and  the  county  in  the  caption  to  the  petition  where  the  summons 
was  properly  entitled.31  An  amendment  may  be  allowed  in  am- 
plification of  plaintiff's  claim.32 

An  amendment  of  a  petition  to  correct  a  mistake  of  the  pleader, 
which  merely  substitutes  one  party  for  another  as  plaintiff,  does  not 
change  the  cause  of  action.33 

In  a  mother's  action  for  death  of  a  minor  son,  an  amendment 

ss  Where  a  petition  on  a  note  recited  that  a  copy  of  the  note  was  attached, 
marked  "Exhibit  A,"  but  by  mistake  the  original  note  instead  of  a  copy  was 
attached,  plaintiff  after  answer  was  entitled  to  amend  by  striking  the  ref- 
erence to  a  copy  and  inserting  a  recital  that  the  original  note  was  attached. 
Bradley  v.  Pinney,  93  P.  585,  77  Kan.  763. 

29  Where  words  descriptive  of  plaintiff  are  by  mistake  used  in  the  title  of 
the  action,  and  an  allegation  is  also  by  mistake  inserted  in  the  petition,  aver- 
ring that  such  plaintiff  is  a  corporation,  the  petition  may  be  amended.    Amer- 
ican Bonding  Co.  of  Baltimore  v.  Dickey,  88  P.  66,  74  Kan.  791. 

30  Where  a  suit  is  brought  to  recover  the  purchase  price  of  a  possessory 
right  to  and  improvements  upon  a  claim  on  which  plaintiff  held  the  home- 
stead entry,  it  is  proper  for  the  court  to  allow  an  amendment  to  the  petition 
changing  the  description  of  the  land  from  the  S.  W.  *4  of  section  No.  23,  to 
the  S.  W.  %  of  section  No.  25.    Lookabaugh  v.  La  Vance,  49  P.  65,  6  Okl.  358. 

In  an  action  brought  for  a  conversion  of  certain  cattle,  and  in  the  trial  of 
which  it  appears  that  the  defendant  did  not  in  fact  sell  the  cattle  in  question, 
but  that  they  were  sold  by  .another  under  the  direction  of  defendant,  who 
knowingly  received  the  proceeds  of  sale,  and  converted  the  same,  it  is  not 
error  for  the  district  court,  before  another  trial  of  the  cause  is  had,  to  per- 
mit the  plaintiff  to  so  amend  his  petition  as  to  charge  defendant  with  a  con- 
version of  the  proceeds  of  such  sale.  Emporia  Nat.  Bank  v.  Layfeth,  64  P. 
973,  63  Kan.  17. 

si  A  petition  did  not  in  its  caption  recite  the  name  of  the  court  and  county 
in  which  the  action  was  brought,  as  required  by  Code  Civ.  Proc.  §  87.  A 
prsecipe  for  summons,  properly  entitled,  was  filed  and  the  summons  in  due 
form  was  served.  Held,  that  the  court  had  jurisdiction  of  the  action  and  of 
the  parties,  and  properly  allowed  the  petition  to  be  amended  by  inserting 
the  name  of  the  court  and  the  county.  Hastie  v.  Burrage,  77  P.  268,  69 
.Kan.  560. 

32  Amendment  to  a  petition  in  an  action  for  defendant's  fraudulent  repre- 
sentations as  to  the  value  of  notes  exchanged  by  him  for  plaintiff's  property 
merely  amplifies  the  averments  of  the  original  petition  and  states  a  cause  of 
action  for  deceit  and  fraud.  Woods  v.  Nicholas,  140  P.  862,  92  Kan.  258. 

Where  an  amended  petition  does  not  substantially  change  plaintiff's  original 
claim,  it  is  not  error  to  permit  it  to  be  filed,  though  it  sets  out  the  original 
claim  more  in  detail.  West  &  Russell  v.  Rawdon,  130  P.  1160,  33  Okl.  399. 

as  Harlan  v.  Loomis,  140  P.  845,  92  Kan.  398. 

(546) 


Art.  8)  AMENDED  AND   SUPPLEMENTAL  PLEADINGS  §   658 

permitting-  the  adding  of  the  brothers  and  sisters  as  plaintiffs  does 
not  change  the  cause  of  action.8* 

Where  cause  of  action  did  not  exist  at  the  time  of  filing  a  peti- 
tion, it  cannot  be  aided  by  an  allegation  in  an  amended  petition 
of  an  occurrence  subsequent  to  the  filing  of  the  original  petition.85 

An  amendment,  changing  an  action  on  a  promissory  note  into  an 
action  on  an  implied  trust,  will  not  be  permitted.36 

That  a  fifth  amended  petition  sets  up  a  different  cause  from  the 
fourth  does  not  render  erroneous  its  allowance,  where  it  does  not 
set  up  a  cause  different  from  that  in  the  petitions  prior  to  the 
fourth.37 

In  an  action  for  slander,  it  is  not  error  to  permit  filing  of  amend- 
ment charging  the  utterance  of  other  slanderous  words  from  those 
alleged,  where  the  new  cause  of  action  is  of  the  same  general  char- 
acter as  that  contained  in  the  original  petition,  and  where  defend- 
ant has  ample  time  to  meet  such  amendment;  it  not  substantially 
changing  the  cause  of  action.38 

It  is  not  error  to  permit  a  petition  in  a  suit  to  quiet  title  to  be 
amended  before  answer,  so  as  to  change  the  action  to  one  in  eject- 
ment, where  no  prejudice  is  shown.39 

An  amendment  in  ejectment  may  be  properly  allowed  to  unite 
a  cause  of  action  for  partition.40 

In  an  action  for  material  furnished  and  services  rendered  for  the 
recovery  of  the  contract  price,  it  is  proper  to  permit  plaintiff  to 
amend  his  petition,  stating  no  new  facts  constituting  a  cause  of 
action,  but  seeking  to  recover  the  value  of  the  material  and  work 
upon  a  quantum  meruit.41 

34  Moteenbocker  v.  Shawnee  Gas  &  Electric  Co.,  49  Okl.  304,  152  P.  82,  L. 
R.  A.  1916B,  910. 

ss  Brown  v.  Galena  Mining  &  Smelting  Co.,  4  P.  1013,  32  Kan.  528. 

36  Jewett  v.  Malott,  57  P.  100,  60  Kan.  509. 

37  Ray  v.  Navarre,  47  Okl.  438,  147  P.  1019. 
«8  Trower  v.  Roberts,  30  Okl.  215,  120  P.  617. 

38  Curtis  v.  Schmehr,  76  P.  434,  69  Kan.  124. 

Where  the  petition  in  an  action  for  partition  shows  the  defendant  to  be  in 
the  exclusive  occupancy  of  the  premises  involved,  the  court  of  the  county  to 
which  the  case  is  transferred  on  change  of  venue  may  permit  it  to  be  amended 
so  as  to  state  also  a  cause  of  action  in  ejectment.  Young  v.  McWilliains,  89 
P.  12,  75  Kan.  243. 

40  Hanson  v.  Hanson,  122  P.  100,  86  Kan.  622. 

*i  Limerick  v.  Lee,  87  P.  859,  17  Okl.  165. 

(547) 


§    658  PLEADINGS  (Ch.  11 

A  petition  for  money  had  and  received  may  be  amended  by  stat- 
ing that  "defendant  wrongfully,  knowingly,  fraudulently,  and  un- 
lawfully appropriated  and  converted  the  money  to  his  own  use," 
without  changing  the  nature  of  the  action,  when  it  is  evident  that 
the  amended  petition  is  concerning  the  same  transaction  set  forth 
in  the  original  one.42 

The  petition  in  action  by  a  copartnership  to  recover  for  conver- 
sion of  its  property  cannot  be  amended,  so  as  to  state  a  cause  of  ac- 
tion in  favor  of  one  of  the  members  of  the  dissolved  firm  for  an 
accounting  of  the  partnership  business  between  such  member  and 
such  defendant.43 

Filing  an  amended  petition  by  leave  waives  all  error  in  the  pro- 
ceedings prior  thereto.44 

When  a  demurrer  to  a  petition  has  been  overruled,  and  the  de- 
fendant answers,  and  the  plaintiff  is  then  permitted  to  amend  the 
petition,  and  to  this  amended  petition  the  defendant  answers,  and 
after  a  trial  is  had  on  the  amended  pleadings,  the  defendant  brings 
the  case  up  for  review,  the  appellate  court  will  not  consider  the 
sufficiency  of  the  original  petition.45 

Where  an  amendment  allowed  after  trial  does  not  substantially 
change  the  issues,  and  there  is  no  showing  of  surprise,40  or  where 
the  court  permits  plaintiff  to  amend  her  petition  by  simply  increas- 
ing the  amount  of  damages  asked  for,  it  is  not  error  to  refuse  to 
allow  a  defendant  time  to  file  an  amended  answer.47 

Where  defendant  has  knowledge  of  misjoinder  before  trial,  he 
cannot  after  trial,  amend  his  answer,  so  as  to  allege  such  mis- 
joinder.48 

42  Bogle  v.  Gordon,  17  P.  857,  39  Kan.  31. 

43  Thompson  v.  Beel'er,  77  P.  100,  69  Kan.  462. 

44  Garanflo  v.  Cooley,  5  P.  766,  33  Kan.  137;   Long  v.  Hubbard,  50  P.  968, 
6  Kan.  App.  878.    An  amended  petition  becomes  and  must  be  treated  as  the 
original  petition.     A   summons,   order   of  arrest,   and   subsequent  judgment 
must  be  considered  the  same  as  if  the  amended  petition  had  been  filed  at  the 
time  the  original  petition  was  filed.    Id. 

45  Union  Pac.  By.  Co.  v.  Estes,  15  P.  157,  37  Kan.  229. 

46  Dixon  v.  Helena  Society  of  Free  Methodist  Church  of  North  America 
(Okl.)  166  P.  114. 

47  City  of  Topeka  v.  Sherwood,  18  P.  933,  39  Kan.  690. 

4  s  Where  plaintiffs  sued  on  a  policy  covering  real  and  personal  property, 
and  the  trial  showed  that  one  had  no  interest  in  the  personalty  and  the 

(548) 


Art.  8)  AMENDED  AND  SUPPLEMENTAL  PLEADINGS  §    658 

An  answer,  defective  for  failure  to  allege  failure  of  warranty,  is 
cured  when  amended  during  trial  by  inserting  the  omitted  allega- 
tions.49 

It  is  not  error  for  the  court,  in  an  action  on  a  note,  to  refuse  to 
allow  defendant  to  amend  his  answer  by  adding  a  new  defense  aft- 
er the  cause  has  been  partly  tried.50 

An  answer  may  be  amended  where  the  amendment  does  not  sub- 
stantially change  the  defense.51 

Where  issues  have  been  joined,  and  plaintiff  has  filed  an  amend- 
ed petition  by  leave  of  court,  which  does  not  change  the  cause  of 
action,  it  is  not  error  to  refuse  defendant  leave  to  file  an  amended 
answer,  where  he  can  prove  all  the  defenses  under  his  original  an- 
swer.52 

It  is  not  error  to  deny  an  application  to  amend  the  answer  during 
trial,  where  the  proposed  amendment  is  inconsistent  with  the  al- 
legations of  the  answer.53 

Defendants  may  be  permitted  to  amend  their  answer  by  pleading 
more  fully  failure  of  consideration,  which  they  had  imperfectly 
pleaded.54 

Refusal  of  amendment  to  answer  to  permit  introduction  of  evi- 
dence establishing  custom  contravening  written  contract  sued  on 
is  not  error.55 

A  pleading  may  generally  be  amended  by  the  addition  of  matters 
arising  or  discovered  after  the  original  pleading  was  filed.56 

A  party  ought  not  to  be  permitted,  after  having  selected  his 


other  no  interest  in  the  real  estate,  which  the  insurance  company  knew  be- 
fore the  action  was  brought,  an  application  after  the  evidence  had  all  been 
introduced  by  defendant  to  amend  its  answer  and  plead  misjoinder  was  prop- 
erly denied.  Phenix  Ins.  Co.  v.  Washington,  81  P.  461,  71  Kan.  777. 

40  Barber  Medicine  Co.  v.  Bradley,  48  Old.  82,  150  P.  127. 

so  Russell  v.  Gregg,  30  P.  185,  49  Kan.  89. 

si  Robertson  v.  Lombard  Liquidation  Co.,  85  P.  528,  73  Kan.  779. 

52  Cherokee  &  P.  Coal  &  Mining  Co.  v.  Britton,  45  P.  100,  3  Kan.  App.  292. 

ss  Engle  v.  Legg,  39  Okl.  475,  135  P.  1058. 

54  Campbell  v.  Newton  &  Driskill,  52  Okl.  518,  152  P.  841. 

66  Drennan  v.  Warburton,  122  P.  179,  33  Okl.  561. 

56  in  an  action  on  a  nonnegotiable  note,  refusal  to  permit  defendant  to  amend 
his  pleadings,  so  as  to  show  that  the  collection  of  the  note  has  been  enjoined 
in  a  suit  between  the  original  parties,  is  reversible  error.  Randolph  v.  Hud- 
son, 74  P.  946,  12  Okl.  516. 

(549) 


§    658  PLEADINGS  (Ch.  11 

ground  of  defense,  when  he  finds  himself  defeated  thereon,  to  shift 
it,  so  as  to  court  the  hazard  of  another  battle.57 

In  view  of  Rev.  Laws  1910,  §  4790,  precluding  defendant  from 
amending  to  change  his  defense,  it  is  not  the  duty  of  trial  court  to 
consider  the  answer  as  amended  to  conform  to  proof.58 

In  an  action  for  damages,  an  amendment  of  defendant's  answer 
by  incorporating  therein  a  general  denial  in  addition  to  the  mat- 
ter formerly  set  up  as  a  defense  does  not  change  substantially  such 
defense,  where  the  former  answer  did  not  contain  a  specific  admis- 
sion of  the  amount  of  damages  claimed  in  plaintiff's  petition.59 

In  a  suit  on  a  contract  for  the  sale  of  land,  the  purchaser  hav- 
ing pleaded  that  the  contract  was  induced  by  fraud  and  had  been 
rescinded  therefor,  it  is  not  an  abuse  of  discretion  to  allow  the 
purchaser,  on  paying  the  costs  and  submitting  to  a  continuance,  to 
amend  his  answer  so  as  to  affirm  the  contract  and  claim  damages 
for  the  fraud.60 

An  amended  answer  and  cross-petition,  filed  in  an  action  by  the 
defendant,  supersedes  the  first  answer;  and  the  plaintiff  is  preclud- 
ed from  insisting  that  the  defenses  set"  up  in  the  original  answer 
and  cross-petition  are  inconsistent  with  each  other.61 

A  deniurrer  to  an  amended  answer  does  not  raise  the  question 
whether  the  pleader  had  a  right  to  make  the  amendment.62 

After  an  amended  answer  has  twice  been  held  good  when  at- 
tacked by  the  plaintiff,  it  is  error  to  refuse  defendant  leave  to  amend 
after  the  demurrer  to  his  amended  answer  had  been  sustained.63 

Where  a  cross-complaint  is  filed  by  defendant  he  is  entitled  to  the 
same  rights  as  plaintiff,  so  far  as  amending  his  pleading  is  con- 
cerned.64 

67  Barrett  v.  Kansas  &  T.  Coal  Co.,  79  P.  150,  70  Kan.  649. 

The  granting  or  refusal  of  permission  to  amend  is  within  trial  court's 
discretion,  which  is  not  abused  by  refusal  to  permit  trial  amendment  to  answer 
substantially  changing  the  defense.  Dill  v.  Malot  (Okl.)  167  P.  219. 

s  s  Springfield  Fire  &  Marine  Ins.  Co.  v.  Griffin,  64  Okl.  131,  166  P.  431. 

so  Smock  v.  Carter,  50  P.  262,  6  Okl.  300. 

eo  Stevens  v.  Matthewson,  26  P.  38,  45  Kan.  594. 

«iReihl  v.  Likowski,  6  P.  886,  33  Kan.  515. 

«2Tecumseh  State  Bank  v.  Maddox,  46  P.  563,  4  Okl.  583. 

63  Leitz  v.  Rayner,  15  P.  571,  37  Kan.  470. 

e*  Venable  v.  Dutch.  15  P.  520,  37  Kan.  515,  1  Am.  St.  Rep.  260. 

Where  a.  cross-petition  alleged  that  by  written  contract  plaintiff  was  to 
pay  for  certain  party  walls,  it  was  not  error  to  permit  an  amendment  at  the 

(550) 


Art.  8)  AMENDED   AND   SUPPLEMENTAL   PLEADINGS  §    658 

After  a  trial,  a  reply  should  not  be  permitted  to  be  amended,  ex- 
cept in  the  interests  of  justice.65 

The  fact  that  a  petition  is  not  subscribed  by  the  party  or  his  at- 
torney is  a  technical  defect,  which  may  be  corrected  by  amend- 
ment.66 

Where  amended  petition  recites  that  all  allegations  of  original 
petition  are  made  a  part  thereof,  demurrer  is  properly  overruled, 
if  facts  stated  in  either  or  both  pleadings  constitute  cause  of  ac- 
tion.67 

When  it  is  important  that  an  answer  should  be  verified,  the 
court  should  allow  it  to  be  done  by  the  affidavit  of  the  defendant, 
his  agent  or  attorney,  even  during  the  trial,  under  such  terms  as 
are  proper.68 

Where  an  unverified  answer  denying  the  execution  of  a  note  was 
not  questioned  by  either  party  throughout  the  trial,  an  amendment 
by  adding  a  verification  may  be  allowed  in  furtherance  of  justice 
before  or  after  judgment.69 

trial  alleging  that  the  plaintiff  agreed  to  pay  for  the  party  walls,  but  that 
by  mutual  mistake  the  written  contract  did  not  express  the  real  agreement, 
and  praying  for  its  reformation.  Gross  Const.  Co.  v.  Hales,  -129  P.  28,  37 
Okl.  131.  Where  a  cross-petition  alleged  that  by  written  contract  plaintiff 
agreed  to  pay  for  party  walls,  an  amendment,  alleging  that  plaintiff  agreed 
to  pay  for  the  party  walls,  but  that  by  mistake  the  written  contract  did  not 
express  the  real  agreement,  did  not  change  substantially  the  claim  or  de- 
fense. Id. 

e  s  In  an  action  for  the  wrongful  seizure  and  conversion  of  personal  prop- 
erty, the  defendant,  a  United  States  marshal,  attempted  to  justify  under  an 
order  of  attachment  directed  to  him.  Subsequent  to  the  filing  of  the  reply 
in  the  case  the  court,  granting  the  order  of  attachment,  upon  motion  dis- 
charged the  attachment  proceedings.  Thereafter  the  plaintiff,  with  leave  of 
the  court,  filed  an  amended  or  supplemental  reply,  setting  up  the  dissolu- 
tion of  the  attachment.  Held,  that  the  court  committed  no  error  in  allow- 
ing the  reply  to  be  filed,  as  it  alleged  facts  material  to  the  case  occurring 
after  the  former  reply.  Simpson  v.  Voss,  1  P.  601,  31  Kan.  227. 

In  an  action  on  a  note,  the  defense  was  failure  of  consideration.  After  a 
verdict  against  plaintiff  was  returned  by  the  jury,  and  after  their  motion  for 
a  new  trial  was  overruled,  plaintiffs  asked  leave  to  amend  their  replies  to  the 
separate  answers  of  defendants,  in  order  to  allege  that  the  said  defense  had 
been  waived  by  defendants.  Held,  that  the  request  to  amend  came  too  late, 
and  was  properly  overruled.  Dunham  v.  Brown,  58  P.  232,  9  Kan.  App.  889. 

ee  Manspeaker  v.  Bank  of  Topeka,  46  P.  1012,  4  Kan.  App.  768. 

67  Dashiell  v.  McGuire,  157  P.  409,  98  Kan.  177. 

es  Chinberg  v.  Gale  Sulky  Harrow  Mfg.  Co.,  16  P.  462,  3S  Kan.  228. 

«»  Jones  v.  Citizens'  State  Bank,  39  Okl.  393, 135  P.  373. 

(551) 


§    658  PLEADINGS  (Ch.  11 

Where  an  answer  is  filed  purporting  to  be  defendant's  answer, 
but  entirely  unsigned,  and  the  case  is  tried  as  if  the  answer  had 
been  signed,  and  the  court's  attention  is  not  called  to  such  defect 
until  after  judgment,  the  answer  may  then  be  amended  by  adding 
the  signature.70 

A  court  may,  on  objection  made  at  the  trial  to  an  unverified  in- 
terplea,  permit  its  verification.71 

Generally,  the  same  rules  will  apply  to  the  amendment  of  bills 
of  particulars,  on  appeal  from  a  justice  to  the  district  court,  as 
those  in  reference  to  the  amendment  of  pleadings  in  general.72 

On  appeal  from  a  justice,  the  district  court  may,  in  the  further- 
ance of  justice,  after  evidence  submitted,  permit  plaintiff,  on  pay- 
ment of  all  costs,  to  amend  his  bill  of  particulars  so  as  to  show  that 
he  is  seeking  to  recover  as  an  administrator,  and  not  as  an  indi- 
vidual.73 

Permitting  a  plaintiff  to  amend  the  bill  of  particulars  the  second 
time,  so  as  to  charge  defendant  as  a  copartnership  instead  of  a  cor- 

7oyUrann  v.  Hamilton,  108  P.  822,  82  Kan.  528. 

71  Hargrove  v.  Woolf,  8  P.  192,  34  Kan.  101. 

72  Where  a  bill  of  particulars  alleged  that  defendant  contracted  to  take 
good  care  of  the  horse  and  colt  of  plaintiff  entrusted  to  his  keeping,  it  will 
be  held  that  such  pleading  states  a  contract  for  ordinary  care,  and,  where 
said  bill  of  particulars  further  states  that  said  horse  and  colt  sickened  and 
died  for  want  of  proper  care  and  attention,  it  is  error  to  admit  evidence 
over  the  objection  of  defendant   of  a  contract  for  special  and  extra  care. 
Ransom  v.  Getty,  14  P.  487,  37  Kan.  75. 

A  written  claim  presented  to  a  railway  company,  accompanied  by  a  letter 
explaining  the  full  particulars  of  the  transaction,  charging  the  company  with 
the  loss  of  50  per  cent,  of  a  certain  number  of  boxes  of  oranges,  and  for 
the  return  of  freight  paid  it  thereon,  is  sufficient  to  notify  the  company  of 
a,  claim  against  it  for  damages  caused  by  its  negligence  in  transporting  the 
oranges;  and  hence  such  claim,  after  being  filed  before  a  justice  of  the  peace 
as  a  bill  of  particulars,  could  be  amended  by  setting  out  the  damages  and 
negligence.  St.  Louis  &  S.  F.  Ry.  Co.  v.  Bryan  Fruit  Co.,  42  P.  267,  1  Kan. 
App.  551. 

Where  the  bill  of  particulars  in  an  action  against  a  railroad  company  for 
a  fire  set  by  a  locomotive  shows  that  the  company  on  a  designated  date  ran  a 
passenger  train  from  one  station  to  another  so  negligently  as  to  permit  fire 
to  escape  from  the  engine  and  destroy  plaintiff's  property,  a  motion  to  re- 
quire the  setting  forth  the  number  of  the  engine  was  properly  refused,  there 
being  nothing  to  indicate  that  the  company  was  operating  so  many  passenger 
trains  as  to  make  it  difficult  to  ascertain  from  the  statement  the  particular 
engine.  Missouri,  K.  &  T.  Ry.  Co.  v.  Traxon,  92  P.  580,  77  Kan.  821. 

78  Reed  v.  Cooper,  1  P.  822,  30  Kan.  574. 

(552) 


Art.  8)  AMENDED   AND   SUPPLEMENTAL   PLEADINGS         §§    658~659 

poration  as  originally  alleged,  being  within  the  discretion  of  the 
trial  court,  is  not  ground  of  reversal.74 

A  bill  of  particulars  on  two  promissory  note's  may  be  amended 
so  as  to  show  the  cause  of  action  to  be  on  a  judgment  rendered  on 
such  notes.75 

§  659.     Supplemental  pleadings 

"Either  party  may  be  allowed,  on  notice,  and  on  such  terms,  as 
to  costs,  as  the  court  may  prescribe,  to  file  a  supplemental  petition, 
answer  or  reply,  alleging  facts  material  to  the  case,  occurring  after 
the  former  petition,  answer  or  reply."  76 

It  is  the  function  of  a  supplemental  petition  to  supply  the  facts 
which  may  be  necessary  to  a  complete  determination  of  the  rights 
of  plaintiff  and  defendant  touching  the  subject-matter  of  the  suit, 
on  the  facts  existing  at  the  time  of  the  rendition  of  the  judgment, 
and  which  would  vary  the  relief  to  which  plaintiff  would  have  been 
entitled  at  the  commencement  of  the  action.77 

The  filing  of  an  amendatory  or  supplemental  pleading  rests  in 
the  discretion  of  the  trial  court,  and  must  be  on  notice.78 

A  plaintiff,  with  the  consent  of  the  court,  may  file  a  supplemental 
petition,  alleging  facts  material  to  the  case  occurring  after  the  fil- 
ing of  his  original  petition.79 

Where  the  application  is  made 'after  several  trials  of  the  action 
and  the  facts  constituting  the  new  defense  are  not  fully  and  defi- 
nitely stated,  and  no  satisfactory  reason  is  given  for  the  delay  in 
presenting  the  application,  its  refusal  is  not  error.80 

Where  a  petition  for  unlawful  conversion  fails  to  state  definitely 
the  date  of  such  conversion,  and  a  motion  by  defendant  to  compel" 


T*  Farmers'  &  Merchants'  Bank  v.  Bank  of  Glen  Elder,  26  P.  680,  46 
Kan.  376. 

7&Teberg  v.  Swenson,  4  P.  S3,  32  Kan.  224. 

76  Rev.  Laws  1910,  §  4795;    Prince  v.  Gosnell,  47  Okl.  570,  149  P.  1162. 

77  Wade  v.  Gould,  59  P.  11,  8  Okl.  690. 

78Brokaw  v.  Bartley,  61  P.  320,  9  Kan.  App.  318;  Kingfisher  Improvement 
Co.  v.  Talley,  51  Okl.  226,  151  P.  873 ;  Alexander  v.  Clarkson,  150  P.  576,  96 
Kan.  174;  Rogers  v.  Hodgson,  26  P.  732,  46  Kan.  276;  Goodacre  v.  Skinner, 
28  P.  705,  47  Kan.  575;  Wade  v.  Gould,  59  P.  11,  8  Okl.  690;  Stith  v.  Ful- 
linwider,  19  P.  314,  40  Kan.  73;  Alexander  v.  Clarkson,  150  P.  576,  96  Kan.  174, 

79  Williams  v.  Moorehead,  7  P.  226,  33  Kan.  609. 

so  Central  Branch  Union  Pac.  R.  Co.  v.  Andrews,  21  P.  276,  41  Kan.  370. 

(553) 


§    659  PLEADINGS  (CIl.  11 

plaintiff  to  give  the  exact  date  is  overruled,  and  both  parties  try 
the  case  as  though  the  statute  of  limitations  were  involved,  it  is 
error  to  refuse  to  permit  defendant,  at  the  close  of  plaintiff's  tes- 
timony, to  file  a  supplemental  answer  raising  question  of  limita- 
tions.81 

A  plaintiff  cannot  file  a  supplemental  petition  after  a  judgment 
determining  in  his  favor  the  issues  presented  by  his  original  peti- 
tion, where  the  purpose  of  such  supplemental  petition  is  merely  to 
join  a  new  party  as  codefendant  in  the  original  action  upon  facts 
arising  since  the  commencement  of  the  action  and  not  growing  out 
of  issues  involved  therein  and  presenting  matters  distinct  from  any 
issue  in  the  original  action.82  The  facts  embodied  in  a  supplemen- 
tal petition  must  relate  to  the  cause  of  action  set  forth  in  the  orig- 
inal petition  and  be  in  aid  thereof.83  A  supplemental  petition  can- 
not set  out  facts  which  have  arisen  since  the  commencement  of  the 
action  and  which  by  themselves  constitute  a  new  and  independent 
cause  of  action  without  reference  to  the  facts  alleged  in  the  original 
pleading.84 

Where  the  petition  states  no  cause  of  action,  the  statute  does  not 
authorize  the  filing  of  a  supplemental  petition  setting  up  subse- 
quently occurring  facts.85  A  defect  in  the  original  petition  in  that 
it  states  a  cause  of  action  not  existing  when  the  action  was  brought 
cannot  be  cured  by  setting  up  in  a  supplemental  petition  matters 
subsequently  occurring.86 

It  is  no  objection  to  a  supplemental  answer  and  cross-petition 
that  it  alleges  matters  which  have  arisen,  or  have  become  known, 
subsequent  to  the  filing  of  the  original  answer,  if  the  facts  are  ma- 
terial.87 

In  a  suit  to  cancel  a  deed,  plaintiff's  application,  at  the  close  of 
the  testimony,  to  file  a  supplemental  reply,  alleging  that  the  deed 

si  Ament  v.  Lowenthall,  35  P.  804,  52  Kan.  706;  Austin  v.  Jones,  28  P.  621, 
47  Kan.  565. 

s  2  National  Bank  of  Anadarko  v.  First  Nat.  Bank,  39  Okl.  225,  134  P.  866. 

83  Id. 

s*  Id. 

so  Reader  v.  Farriss,  49  Okl.  459, 153  P.  678,  L.  R.  A.  1916D,  672;  Farriss  v. 
Reader,  49  Okl.  492,  153  P.  682. 

sa  id;   Gardner  v.  City  of  Leavenworth,  146  P.  1000,  94  Kan.  509. 

si  Atkinson  v.  Kirkpatrick,  135  P.  579,  90  Kan.  515;  Robertson  v.  Christen- 
son,  135  P.  567,  90  Kan.  555. 

(554) 


Art.  9)  DEFECTS  AND  OBJECTIONS  §§659~662 

had  been  obtained  by  fraud,  is  properly  denied,  where  the  evidence 
does  not  support  such  allegation.88 

A  demurrer  to  a  supplemental  petition  runs  to  the  allegations  of 
both  the  original  and  supplemental  petitions.80 

A  petition  pleading  a  specific  title  as  the  foundation  for  relief 
is  not  enlarged  by  an  amended  answer  which,  besides  pleading 
specific  defenses,  states  in  general  terms  that  the  plaintiff  has  no 
title,  and  in  order  to  secure  the  benefit  of  a  new  title  acquired  sub- 
sequent to  the  institution  of  the  suit  the  plaintiff  should  obtain 
leave  to  file  a  supplemental  petition  setting  up  such  title.90 

§  660.     Lost  pleadings 

"If  an  original  pleading  be  lost,  or  withheld  by  any  person,  the 
court  may  allow  a  copy  thereof  to  be  substituted."  81 

ARTICLE  IX 

DEFECTS  AND  OBJECTIONS 

Sections 

661.  Immaterial  errors. 

662.  Cure  of  error. 

663.  Waiver. 

664.  Objection  to  introduction  of  any  evidence — Form. 

§  661.     Immaterial  errors 

"The  court,  in  every  stage  of  action,  must  disregard  any  errof 
or  defect  in  the  pleadings  or  proceedings  which  does  not  affect  the 
substantial  rights  of  the  adverse  party ;  and  no  judgment  shall  be 
reversed  or  affected  by  reason  of  such  error  or  defect."  92 

§  662.     Cure  of  error 

Omission  of  material  allegations  in  a  petition  or  complaint  may 
be  supplied  by  the  allegations  of  the  answer.83 

s  8  Lewis  v.  Allen,  142  P.  384,  42  Okl.  584. 
s»  Reynolds  v.  Hill,  114  P.  1108,  28  Okl.  533. 

90  Robertson  v.  Board  of  Com'rs  of  Rawlins  County,  113  P.  413,  84  Kan. 
52,  judgment  affirmed  on  rehearing  119  P.  316,  86  Kan.  10. 
»i  Rev.  Laws  1910,  §  4783. 

92  Rev.  Laws  1910,  §  4791;   Blackwell  v.  Hatch,  73  P.  933,  13  Okl.  169. 

93  Loyal   Mystic   Legion  of  America  v.  Brewer,  90  P.   247,  75  Kan.  729; 
St.  Louis  &  S.  F.  R.  Co.  v.  Keller,  62  P.  905,  10  Kan.  App.  480. 

Where  the  holder  of  a  note  and  mortgage  brings  suit  to  foreclose,  making 
the  mortgagees  and  others  defendants,  and  states  as  to  such  others  that  the 


§    662  PLEADINGS  (Ch.  11 

Where  the  allegations  of  an  answer  explicitly  set  forth  matters 
defectively  set  forth  in  the  petition,  such  defects  in  the  petition 
are  cured.94 

The  objection  that  the  petition  of  plaintiff  contained  two  causes 
of  action  which  were  not  separately  stated  and  numbered,  one  be- 
ing to  reform  a  deed,  became  immaterial  when  the  defendant  in 
his  pleading  and  proof  showed  that  the  mistake  in  that  deed  had 
been  cured  by  the  making  and  delivery  of  a  subsequent  deed.93 

Defects  in  the  petition  caused  from  incomplete  allegations  as  to 
malice  and  probable  cause  are  cured  by  an  answer  admitting  the 
imprisonment,  setting  out  all  the  facts,  and  attempting  a  justifica- 
tion.96 

In  an  action  to  recover  under  an  agreement  to  deliver  seed  vital 
and  fit  for  seed  purposes,  a  failure  to  allege  in  the  petition  that  the 
seed  furnished  were  vital  and  fit  for  seed  purposes  is  remedied  by 
an  answer  averring  that  they  were  unfit  for  seed  purposes  and 
were  not  vital.97 

"defendants,  and  each  of  them,  have  or  claim  some  interest  in  and  to  the 
premises  above  described,"  and  W.,  one  of  such  others,  without  objection,  files 
a  full  answer,  setting  up  all  his  claims  and  interests  in  the  premises,  and  a 
trial  is  had  on  such  pleadings,  and  both  plaintiff  and  W.  introduce  evidence, 
and  findings  are  made  and  judgment  rendered,  though  plaintiff's  petition  as 
against  W.  is  defective,  yet  W.,  by  his  answer  and  other  acts,  waives  the  de- 
fects. Clay  v.  Hildebrand,  9  P.  466,  34  Kan.  694. 

Under  Gen.  St.  1889,  par.  4223,  directing  that  errors  not  affecting  the  mer- 
its be  disregarded,  a  defect  in  a  petition  in  an  action  to  vacate  a  judgment, 
arising  from  failure  to  set  forth  the  judgment,  was  cured  by  an  answer  ad- 
mitting rendition  of  the  judgment,  and  evidence,  containing  the  petition, 
summons,  and  judgment  in  full,  where  the  question  of  the  sufficiency  of  the 
petition  was  raised  only  by  objection  to  evidence  because  it  failed  to  state  a 
cause  of  action.  Schnitzler  v.  Fourth  Nat.  Bank,  42  P.  496,  1  Kan.  App.  674. 

Appointment  of  receiver  to  protect  property  and  hold  revenues  pending  final 
result  or  suit  to  cancel  a  guardian's  lease  and  quiet  title,  held  not  error, 
though  the  ancillary  petition  was  not  verified,  where  a  verified  answer  ad- 
mitted facts  alleged  in  the  petition  authorizing  appointment  of  receiver. 
Ward  v.  Inter-Ocean  Oil  &  Gas  Co.,  52  Okl.  490,  153  P.  115. 

84  Bierer  v.  Fretz,  4  P.  284,  32  Kan.  329. 

Where  a  petition  inferentially  states  a  fact,  and  the  answer  admits  the 
fact,  and  the  defendant  objects  to  the  introduction  of  any  evidence  under  the 
petition  because  it  does  not  state  such  fact,  and  the  court  overrules  the  objec- 
tion, held  not  error.  Atchison,  T.  &  S.  F.  R.  Co.  v.  Gabbert,  8  P.  218,  34  Kan. 
132. 

»»  Knight  v.  Dal  ton,  83  P.  124,  72  Kan.  131. 

96  Arkansas  City  Bank  v.  McDowell,  52  P.  56,  7  Kan.  App.  568. 

97  D.  M.  Ferry  &  Co.  v.  Ballinger,  60  P.  824,  8  Kan.  App.  756. 

(556) 


Art.  9)  DEFECTS  AND  OBJECTIONS  §  662 

Where  defendants  plead  facts  amounting  to  a  waiver  of  a  condi- 
tion in  the  policy,  a  failure  of  plaintiff  to  plead  such  waiver  is 
cured.98 

Where  the  petition  contains  two  counts,  one  for  recovery  of  a 
real  estate  agent's  commission,  the  other  on  a  note  given  for  the 
same  debt,  and  defendant  files  a  general  denial  and  plea  that  the 
note  has  been  altered,  plaintiff  is  entitled  to  a  trial  on  both 
counts." 

Where  the  petition  against  the  indorser  of  a  note  fails  to  allege 
notice  of  dishonor  or  facts  excusing  notice,  but  the  indorser  sets 
up  a  failure  to  give  notice,  and  plaintiff  replies,  alleging  facts  ex- 
cusing the  failure,  and  the  case  is  tried  on  the  issues  thus  joined, 
the  defects  are  cured.1 

Where  the  petition  in  holder's  action  against  maker  and  in- 
dorser, which  because  of  scrivener's  inadvertence  in  copying  note 
set  out  in  its  body  failed  to  allege  notice  of  dishonor  or  any  ex- 
cuse, after  admission  of  note  in  terms  waiving  notice  of  protest, 
court,  in  interest  of  justice,  should  treat  the  petition  as  amended. - 

In  an  action  for  conversion,  where  possession  was  not  alleged  in 
the  pleading,  the  defect  was  cured  by  the  introduction,  without 
objection  at  any  time  in  the  trial  court,  of  evidence  proving  such 
possession.3 

An  indefinite  answer  is  cured  by  the  admission  without  objec- 
tion of  evidence  supplying  the  omissions.4 

A  complaint  for  negligence,  though  not  alleging  that  plaintiff 
used  due  care,  is  not  cured  by  verdict  for  plaintiff.5 

Failure  of  a  petition  in  an  action  for  price  of  land  to  allege  ten- 
der of  a  deed  is  cured  by  judgment  requiring  plaintiff  to  deposit  a 
deed  before  rendition  of  judgment.6 

Where  plaintiff  recovered,  and  defects  in  the  petition  were  not 
challenged  by  demurrer,  objections  to  testimony,  or  motion  for 

98  Milwaukee  Mechanics'  Ins.  Co.  v.  Sewell  (Okl.)  168  P.  660. 

99  Gonder  v.  Dodge,  155  P.  937,  97  Kan.  562. 

1  Shaffer  v.  Govreau,  128  P.  507,  36  Okl.  267. 

2  Whitaker  v.  Bruner  (Okl.)  175  P.  238. 

3  Long-Bell  Lumber  Co.  v.  Webb,  52  P.  64,  7  Kan.  App.  406. 

4  Bailey  v.  Parry  Mfg.  Co.,  59  Okl.  152,  158  P.  581. 

5  City  of  Guthrie  v.  Nix,  41  P.  343,  3  Okl.  136. 

6  Witt  v.  Boothe,  158  P.  851,  98  Kan.  554. 

(557) 


§§  662-663  PLEADINGS  (Ch.  11 

new  trial,  the  petition  would  be  regarded  after  judgment  as  amend- 
ed.7 

Where  defendants  do  not  appear  until  after  judgment,  objec- 
tions that  the  petition  fails  to  support  the  judgment  will  be  over- 
ruled, unless  it  fails  to  allege  some  matter  essential  to  the  relief 
sought.8 

Any  error  in  overruling  objections  to  evidence  in  ejectment  be- 
cause the  petition  fails  to  set  up  copies  of  instruments  making  up 
chain  of  title  is  cured  by  amendment  after  verdict  without  objec- 
tion or  exception  setting  up  such  copies.9 

§  663.     Waiver 

"When  the  defects  do  not  appear  upon  the  face  of  the  petition, 
the  objection  may  be  taken  by  answer;  and  if  no  objection  be  tak- 
en, either  by  demurrer  or  answer,  the  defendant  shall  be  deemed 
to  have  waived  the  same,  except  only  the  objection  to  the  jurisdic- 
tion of  the  court,  and  that  the  petition  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action."  10 

Where  an  attorney  fails  to  point  out  clearly  the  grounds  of  his 
objection  to  pleadings  or  proceedings,  he  will  ordinarily  be  deem- 
ed to  have  waived  his  objection.11 

Irrelevancy  and  redundancy  in  a  pleading  are  waived  by  failure 
to  move  to  strike  it  in  the  trial  court.12 

Incapacity  of  the  plaintiff  to  sue,  which  appears  on  the  face  of 
the  petition,  must  be  taken  advantage  of  by  either  an  answer  or  a 
demurrer,  or  the  defect  is  waived.18 

Where  parties  submit  issues  to  court  on  agreed  state  of  facts, 
generally  such  action  waives  error  in  rulings  on  the  pleadings.1* 

Where  a  defective  petition  sets  forth  a  prima  facie  cause  of  ac- 

7  Farmers'  &  Merchants'  Nat.  Bank  v.  Gann,  148  P.  249,  95  Kan.  237. 

8  Hoehler  v.  Short,  140  P.  146,  40  Okl.  681. 
8  Randals  v.  Paro  (Okl.)  168  P.  216. 

i°  Rev.  Laws  1910,  §  4742. 

11  Emery  v.  Bennett,  loo  P.  1075,  97  Kan.  490,  Ann.  Cas.  1918D,  437. 

12  Hunt  v.  Jones,  128  P.  1094,  35  Okl.  252. 

13  Where  a  widow  sues  for  the  wrongful  death  of  her  husband  and  alleges 
that  no  personal  representative  has  been  appointed,  widow's  incapacity  to  sue 
must  be  taken  advantage  of  by  demurrer  or  answer,  or  defect  will  be  waived. 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Brooks,  57  Okl.  163,  156  P.  362. 

14  Powell  v.  Crittenden,  57  Okl.  1,  156  P.  661;   Enid  City  Ry.  Co.  v.  City  of: 
Enid,  144  P.  617,  43  Okl.  778. 

(558) 


Art.  9)  DEFECTS   AND   OBJECTIONS  §    663 

tion  and  is  met  by  answer  instead  of  demurrer,  it  will  be  deemed 
sufficient.16 

When  a  case  is  tried  by  the  court  on  an  agreed  statement  of 
facts,  and  no  objection  is  raised  to  the  sufficiency  of  the  petition, 
any  defect  therein  which  could  be  cured  by  an  amendment  is 
waived.16 

A  defendant  cannot  complain  of  the  insufficiency  of  a  petition 
to  present  an  issue  in  which  it  voluntarily  joined,  where  such  is- 
sue was  fully  tried  on  the  merits.17 

A  party,  accepting  all  the  issues  tendered,  by  the  petition,  and 
defending  the  case  against  all  the  theories  presented,  will  not  be 
granted  a  new  trial  because  of  the  inconsistency  of  such  theories.18 

Any  error  in  overruling  a  demurrer  is  waived,  where  defendant 
ans*wered  an  amended  petition,  curing  the  defect,  and  went  to  trial 
without  objection.19 

Where  a  petition  in  equity  was  defective,  in  that  it  contained 
no  offer  to  place  defendant  in  statu  quo,  defendant  waived  his  right 

15  Naugle  v.  Naugle,  132  P.  164,  89  Kan.  622. 

Where  failure  of  petition  on  foreclosure  of  mechanic's  lien  to  allege  that 
the  material  furnished  was  actually  used  in  the  building  was  not  challenged 
by  demurrer,  the  defect  was  waived.  Ryndak  v.  Seawell,  76  P.  170, 13  Okl.  737. 

A  bill  of  particulars  praying  for  specific  property  or  its  value  and  also  for 
damages  is  sufficient  under  Rev.  Laws  1910,  §  4807,  to  warrant  recovery  of 
damages  for  the  detention  in  absence  of  objection.  Weleetka  Light  &  Water 
Co.  v.  Castleberry,  142  P.  1006,  42  Okl.  745. 

In  an  action  for  partition,  where  a  petition  avers  parties  are  tenants  in 
common,  but  not  that  plaintiffs  are  in  possession,  and  there  is  not  joined  with 
the  demand  for  partition  an  action  for  possession,  and  the  defendant  answers, 
claiming  title  and  possession,  and  asking  that  title  be  quieted,  and  the  suffi- 
ciency of  plaintiffs'  petition  is  not  challenged  by  defendant,  he  thereby  waives 
all  objections  to  its  sufficiency.  Moorehead"  v.  Robinson,  75  P.  503,  68  Kan. 
534. 

16  State  Bank  of  St.  John  v.  Norduff.  43  P.  312,  2  Kan.  App.  55. 

17  Triple  Tie  Ben.  Ass'n  v.  Wood,  98  P.  219,  78  Kan.  812. 

Where,  in  ejectment,  counsel  in  opening  statement  spoke  of  the  defendant's 
conversion  of  plaintiff's  personalty,  and  the  court  without  objection  permitted 
evidence  as  to  damages  for  such  conversion,  though  it  was  not  pleaded,  held, 
that  the  pleading  should  be  construed  as  broad  enough  to  include  those  ele- 
ments of  damage,  or  that  the  issues  were  enlarged  by  consent  of  parties.  Cus- 
ter  v.  Royse,  104  Kan.  339,  179  P.  353. 

18  Provident  Loan   Trust   Co.    v.    Mclntosh,    75   P.   498,   68   Kan.   452,    1 
Ann.  Cas.  906. 

1°  Commerce  Trust  Co.  v.  School  Dist.  No.  37  of  Pontotoc  County,  47  Okl. 
Ill,  147  P.  303. 

(559) 


§    663  PLEADINGS  (Ch.  11 

to  attack  it  on  that  ground,  where  he  answered  to  the  merits  and 
went  to  trial  upon  the  issues  tendered.20 

When  causes  of  action  have  been  improperly  joined,  if  no  objec- 
tion is  taken  by  demurrer,  the  error  is  waived.21 

It  is  too  late  to  object  for  the  first  time  on  the  trial  of  a  cause 
to  the  insufficiency  of  a  petition  on  technical  grounds,  or  to  any 
amendment  which  has  been  answered  and  issues  joined  thereon.22 

The  sufficiency  of  the  allegations  of  a  petition  to  state  a  cause 
of  action  cannot  be  questioned  for  the  first  time  by  a  motion  to 
set  aside  a  sheriff's  sale  made  pursuant  to  the  judgment  rendered 
in  the  case.23 

Failure  to  plead  estoppel  or  waiver  may  be  waived  by  plaintiff 
by  proceeding  without  objection  as  though  such  defense  had  been 
pleaded.24 

The  pleading  of  inconsistent  defenses  is  waived,  where  plaintiff 
replies  and  joins  issue  thereon  and  makes  no  objection  until  motion 
for  a  new  trial.25 

An  answer  charging  contributory  negligence  in  general  terms 
is  sufficient,  if  a  motion  to  make  definite  and  certain  has  not  been 
filed.26 

Objection  on  the  ground  that  it  does  not  state  a  cause  of  action 

20  Smith  V.  Smith,  89  P.  896,  75  Kan.  847. 

21  Tucker  v.  Hudson,  38  Okl.  790,  134  P.  21;   Reynolds  v.  Hill,  114  P.  1108, 
28  Okl.  533 ;    Gates  v.  Freeman,  57  Okl.  449,  157  P.  74. 

In  ejectment  for  several  distinct  parcels  of  land,  where  plaintiff's  title  as 
to  all  defendants  is  the  same,  and  the  answer  sets  up  misjoinder  of  causes  of 
action,  because  some  of  the  defendants  claim  separate  interests  in  separate 
parcels,  but  admits  that  all  defendants  are  in  possession  of  all  the  real  estate, 
the  misjoinder  is  no  ground  for  objection  to  the  introduction  of  testimony,  or 
demurrer  to  tne  evidence ;  and,  where  none  of  defendants  ask  a  separate  trial, 
and  the  action  proceeds  as  though  there  was  no  misjoinder,  it  will  be  regarded 
as  immaterial.  Bloclgett  v.  Yocum,  103  P.  128,  SO  Kan.  644. 

One  appearing  and  answering  a  cross-action  against  him  without  objection 
waives  misjoinder  of  causes  of  action  in  the  cross-petition.  State  Exch. 
Bank  v.  National  Bank  or  Commerce  (Okl.)  174  P.  796,  2  A.  L.  R.  211;  Same 
v.  Traders'  Nat.  Bank  (Okl.)  174  P.  799. 

->2  City  of  Guthrie  v.  Finch,  75  P.  288,  13  Okl.  496. 

23  Birmingham  v.  Leonhardt,  43  P.  996,  2  Kan.  App.  513. 

-4  First  Bank  or  Texola  v.  Terrell,  44  Okl.  719,  145  P.  1140,  Ann.  Cas. 
1917A,  681. 

-5  Kaufman  v.  Boismier,  105  P.  326,  25  Okl.  252. 

26  Kirkland  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  104  Kan.  388,  179  P.  362. 

(5GO) 


Art.  9)  DEFECTS  AND   OBJECTIONS  §    663 

is  waived  by  failure  to  demur  to  a  counterclaim  seeking  affirmative 
relief.27 

Where  defendant  voluntarily  goes  to  trial  without  a  reply  being 
filed,  when  he  is  not  bound  to  do  so,  he  waives  it,  and  is  regarded 
as  consenting  to  go  to  the  proof  of  the  answer  as  if  it  were  de- 
nied.28 

Departure  in  a  reply  is  waived  by  failure  to  move  to  strike.29 

Where  a  petition  is  filed,  defendant  answers,  and  plaintiff  re- 
plies by  a  general  denial,  and  afterwards  defendant  files  an  amend- 
ed answer,  including  the  allegations  in  his  first  answer,  and,  in 
addition  thereto,  sets  up  new  matter,  and  no  reply  is  filed  to  this 
amended  answer;  and  the  parties  go  to  trial  thereon  without  ob- 
jection, all  the  allegations  of  the  amended  answer  are  put  in  issue 
by  the  reply  of  plaintiff,  except  the  new  matter  contained  in  the 
amended  answer;  and,  if  a  reply  by  plaintiff  is  necessary  to  the 
amended  answer,  defendant  waives  such  reply  by  proceeding  to 
trial  without  objection  and  as  if  a  reply  had  been  filed.30 

An  objection  to  a  reply  for  variance  cannot  be  made  by  a  de- 

27  Wyman  v.  Herard,  59  P.  1009,  9  Okl.  35. 

Where  a  counterclaim  for  damages  for  an  alleged  wrongful  attachment  is 
set  up  in  answer,  plaintiff,  by  filing  a  reply,  thereby  joins  issue  and  waives 
objection  that  such  damages  were  not  the  proper  subject  for  a  counterclaim. 
Word  v.  Nakdimen  (Okl.)  178  P.  257. 

28  Patterson  v.  Choate,  50  Okl.  761,  151  P.  620 ;   Holt  v.  Holt,  102  P.  187,  23 
Okl.  639 ;    Kepley  v.  Carter,  30  P.  182,  49  Kan.  72 :    Allison  v.  Bryan,  109  P. 
934,  26  Okl.  520,  30  L.  R.  A.  (N.  S.)  146,  138  Am.  St.  Rep.  988;    Leach  v.  Al- 
tus  State  Bank,  56  Okl.  102,  155- P.  875. 

29Purcell  v.  Corder,  124  P.  457,  33  Okl.  68;  Stuart  v.  Grayson  (Okl.)  162 
P.  956 ;  St.  Paul  Fire  &  Marine  Ins.  Co.  v.  Mountain  Park  Stock  Farm  Co.,  91) 
P.  647,  23  Okl.  79. 

Defendant,  who  submits  the  cause  to  the  jury  without  objection  to  the 
pleadings  or  the  evidence,  will  be  held  to  have  accepted  all  the  issues  ten- 
dered, and  waived  any  question  of  the  departure  of  the  reply  from  the  peti- 
tion. Consolidated  Kansas  City  Smelting  &  Refining  Co.  v.  Osborne,  71  P. 
838,  66  Kan.  393. 

In  an  action  on  a  note  by  an  indorsee  against  the  maker,  the  answer  was 
fraud  in  its  inception,  plaintiff  replied,  denying  each  and  all  of  the  allegations 
in  the  answer,  inconsistent  with  or  denying  allegations  of  the  petition.  Held 
that,  though  the  reply  was  defective,  as  the  parties  proceeded  through  two 
trials  as  if  it  were  sufficient,  and  the  fraud  alleged  was  in  issue,  defendant 
is  not  in  a  position  to  insist  that  the  fraud  was  admitted.  First  Nat.  Bank 
v.  Abmeyer,  108  P.  94,  82  Kan.  283. 

30  Cooper  v.  Davis  Sewing  Mach.  Co.,  15  P.  235,  37  Kan.  231. 

HoN.Pt.&  PEAC.— 36  (561) 


§    663  PLEADINGS  (Ch.  11 

fendant  who  has  filed  a  special  answer  setting  forth  a  fals«  is- 
sue, to  which  any  reply  would  be  sufficient.31 

Where  a  demurrer  to  a  pleading  is  sustained,  and  the  pleader 
asks  leave  to  amend,  he  waives  the  error  in  sustaining  such  de- 
murrer, and  in  order  to  take  advantage  of  any  error  in  the  ruling 
he  must  stand  on  his  pleading.32 

The  filing  of  an  amended  pleading  on  the  sustaining  of  a  demur- 
rer to  the  original  pleading  is  a  waiver  of  any  error  in  the  ruling 
on  the  demurrer.38 

Defendant  who  files  an  answer  within  time  granted  therefor  after 
overruling  of  the  demurrer,  waives  any  error  in  overruling  the  de- 
murrer,34 unless  an  exception  to  the  ruling  was  taken.35 

31  Plaintiff  in  an  action  on  a  policy  alleged  a  total  loss,  which  defendant  in 
his  answer  denied  generally,  averring  the  loss  to  be  partial,  and  not  total,  and 
set  forth  as  a  special  defense  that  an  appraisal  required  by  the  policy  had  not 
been  completed,  and  that  the  action  was  prematurely  brought,  which  special 
answer 'was  surplusage  and  constituted  no  defense  to  the  action  stated.    Plain- 
tiff's reply  alleged  abandonment  of  the  appraisement  by  defendant.    Held,  that 
the  reply  was  responsive  to  the  special  matter  pleaded,  and  an  objection  that  it 
was  variant  with  the  cause  of  action  stated  in  the  petition  could  not  be 
raised  by  defendant;    it  having  by  special  answer  set  forth  a  false  issue,  to 
which  any  reply  would  "be  sufficient.    Liverpool  &  L.  &  G.  Ins.  Co.  v.  Heckman, 
67  P.  879,  64  Kan.  388. 

32  Board  of  Com'rs  of  uarfield  County  v.  Beauchamp,  88  P.  1124,  18  Okl. 
1 ;    State  v.  Martin,  62  Okl.  295,  162  P.  1088 :   Berry  v.  Barton,  71  P.  1074,  12 
Okl.  221,  66  L.  R.  A.  513 ;    Chidsey  v.  Ellis,  125  P.  464,  31  Okl.  107 ;   Morrill  v. 
Casper,  73  P.  1102,  13  Okl.  335;    Gates  v.  Miles  (Okl.)  169  P.  888;    Guess  v. 
Reed,  49  Okl.  124,  152  P.  399. 

33  Bank  of  Santa  Fe  v.  Haskell  County  Bank,  38  P.  485,  54  Kan.  375;   King- 
man  v.  Pixley,  54  P.  494,  7  Okl.  351 ;   Pattee  Plow  Co.  v.  Beard,  110  P.  752,  27 
Okl.  239,  Ann.  Cas.  1912B,  704 ;    Campbell  v.  Thornburgh,  57  Okl.  231,  154  P. 
574 ;    Wallace  v.  Blasingame,  53  Okl.  198,  155  P.  1143 ;    Cabell  v.  McLish,  61 
Okl.  224,  160  P.  592 ;   Brown  v.  J.  I.  Case  Plow  Works,  59  P.  601,  9  Kan.  App. 
685. 

3*  Munson  v.  First  Nat.  Bank  of  Okmulgee,  58  Okl.  284,  159  P.  486. 

Where  defendant  demurs  to  a  complaint  as  not  stating  a  cause  of  action, 
and  the  demurrer  is  overruled,  and,  without  raising  exceptions,  defendant  an- 
swers, any  defects  in  the  complaint  are  cured.  Sanford  v.  Weeks,  18  P.  823, 
39  Kan.  649. 

Where  a  petition  on  a  policy  failed  to  show  that  plaintiff  had  not  per- 
formed the  conditions  precedent,  and  after  the  overruling  of  a  demurrer  de- 
fendant filed  an  answer,  alleging  failure  to  comply  with  the  provisions  of 
the  policy,  the  grounds  of  demurrer  were  waived.  American  Ins.  Co.  of 
Newark,  N.  J.,  v.  Rodenhouse,  128  P.  502,  36  Okl.  211. 

Where  the  petition  does  not  allege  compliance  with  the  conditions  precedent 

36  Simmons  v.  Chestnut-Gibbons  Grocery  Co.  (Okl.)  173  P.  217. 
(562) 


Art.  9)  DEFECTS  AND  OBJECTIONS  §  .663 

AVhere  a  demurrer  is  sustained  to  certain  paragraphs  of  the 
answer,  and  defendant  files  an  amended  answer  setting  up  the 
same  defenses  and  issues  are  joined  thereon,  error  in  sustaining 
the  demurrer  is  waived.36 

A  party  who  seeks  to  have  the  ruling  on  a  demurrer  to  the  peti- 
tion reviewed  must  elect  to  stand  on  the  demurrer,  and  at  once 
bring  the  case  to  the  appellate  court,  or  an  answer  may  be  filed,  and 
when  the  case  is  tried,  if  it  is  tried  on  the  original  petition,  and 
then  brought  up  by  the  party  demurring,  the  ruling  on  the  demurrer 
will  be  passed  on.3T 

The  asking  and  obtaining  of  leave  to  file  an  amended  petition  at 
end  of  trial  waives  any  error  in  denying  application  to  amend 
original  pleading  or  any  error  in  proceedings  prior  to  filing  of 
amended  petition.38 

Verification  of  the  denial  of  the  execution  of  a  written  instrument 
is  not  waived,  though  there  be  no  motion  to  strike  the  pleading 
from  the  file.39 

Where  upon  retrial  the  petition  was  amended  so  that  the  facts 
stated  in  the  amended  petition  constituted  a  new  cause  of  action, 
which  would  be  barred  by  expiration  of  the  period  of  limitation 
after  the  filing  of  the  original  petition,  and  before  the  filing  of  the 
amended  petition,  but  at  the  former  trial  the  case  was  tried  on  the 
theory  set  up  in  the  amended  petition,  defendant,  having  acquiesced 
in  such  interpretation  of  the  original  petition,  is  precluded  from  ob- 
jecting that  the  amended  petition  set  up  a  new  cause  of  action.40" 

Where  plaintiff  is  permitted  to  file  a  supplemental  petition  during 
the  trial  without  previous  notice,  and  defendant  objects  to  the  fil- 
ing on  grounds  other  than  want  of  notice,  and  proceeds  with  the 

to  an  action,  and  a  demurrer  is  overruled,  and  defendant  alleges  that  plain- 
tiff has  failed  to  comply  with  the  conditions,  the  grounds  of  demurrer  are 
waived.  Rochester  German  Ins.  Co.  of  Rochester,  N.  Y.,  v.  Rodenhouse,  12£ 
P.  508,  36  Okl.  378. 

36  Pacific  Mut.  Life  Ins.  Co.  of  California  v.  O'Neil,  130  P.  270,  36  Okl.  792. 

A  plaintiff  in  ejectment,  who,  on  second  trial  as  a  matter  of  right,  replied 
to  an  answer  to  which  a  demurrer  had  been  sustained,  and  objected  to  an 
amended  answer,  held  to  have  waived  the  demurrer.  Johnson  v.  Myers,  122 
P.  713,  32  Okl.  421. 

87  Union  Pac.  Ry.  Co.  v.  Estes,  15  P.  157,  37  Kan.  229. 

38  Cornelssen  v.  Harman,  103  Kan.  624,  176  P.  141. 

so  St.  Louis  &  S.  F.  R,  Co.  v.  Bruner,  52  Okl.  349,  152  P.  1103. 

*°  Taylor  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  68  P.  691,  64  Kan.  888. 

(563) 


§    663  PLEADINGS  (Ch.  11 

trial  without  making  an  application  for  delay,  he  cannot  afterwards 
complain  of  want  of  notice.41 

The  lack  of  verification  of  a  pleading  is  waived  by  pleading  over 
and  going  to  trial  on  the  merits  without  objection.42 

A  party  who  challenges  the  form  or  sufficiency  of  a  verified 
pleading  should  attack  it  by  motion  before  the  introduction  of  the 
evidence  is  begun,  and  an  objection  made  after  the  introduction  of 
the  evidence  is  ordinarily  too  late  to  be  available.43 

Where,  on  sustaining  objection  to  the  sufficiency  of  plaintiff's 
pleading,  he  avails  himself  of  leave  to  amend,  he  thereby  waives 
his  right  to  complain  of  the  ruling.44 

Error,  if  any,  in  striking  matter  from  an  amended  answer,  is  waiv- 
ed by  defendant's  taking  leave  to  file  and  filing  a  further  amend- 
ment.45 

41  King  v.  Hyatt,  32  P.  1105,  51  Kan.  504,  37  Am.  St.  Rep.  304. 

Where  plaintiff,  without  objection,  filed  a  supplemental  petition  setting  up 
a  new  cause  of  action,  the  error,  if  any,  was  waived  where  defendant  filed 
answer  and  went  to  trial  upon  the  issues  so  joined  under  Rev.  Laws  1910,  § 
4742,  providing  that  where  certain  defects,  including  misjoinder  of  causes  of 
action,  exist  in  the  petition,  and  no  objection  is  taken  by  demurrer  or  answer, 
defendant  shall  be  deemed  to  have  waived  such  objections  with  immaterial 
exceptions.  Reynolds  v.  Hill,  114  P.  1108,  28  Okl.  533. 

*2  Boston  Loan  &  Trust  Co.  v.  Organ,  36  P.  "733,  53  Kan.  386. 

Plaintiff,  not  objecting  to  an  unverified  plea  of  intervention  before  proceed- 
ing to  trial,  is  deemed  to  have  waived  any  objection  to  the  failure  to  verify 
such  plea.  Farmers'  State  Bank  of  Ada  v.  Keen  (Okl.)  167  P.  207. 

Defective  verification  of  a  petition  on  which  a  restraining  order  was  granted 
ex  parte  was  waived  where  defendant  answered  to  the  merits  without  ob- 
jecting to  the  petition.  Galbreath  Gas  Co.  v.  Lindsey,  129  P.  45,  35  Okl.  235. 

Any  defect  or  irregularity  in  the  verification  of  a  petition  for  an  injunction 
is  waived,  where,  without  raising  it,  defendant  answers  to  the  merits.  Glasco 
v.  School  Dist.  No.  22,  McClain  County,  103  P.  687,  24  Okl.  236. 

The  failure  of  defendant,  in  an  action  on  a  note,  to  verify  his  answer  deny- 
ing execution  was  waived  by  the  filing  of  a  reply  denying  the  allegations  of 
the  answer.  Jones  v.  Citizens'  State  Bank.  39  Okl.  393,  135  P.  373. 

Where  a  pleading  denies  the  execution  of  a  written  instrument,  and  is  veri- 
fied by  an  attorney,  and  no  objection  is  made  to  the  verification  until  evidence 
is  offered  in  support  of  the  denial,  it  is  not  error  to  overrule  an  objection  made 
on  the  ground  that  the  affidavit  does  not  show  that  the  facts  were  within  the 
personal  knowledge  of  the  attorney.  Hoopes  v.  Buford  &  George  Implement 
Co.,  26  P.  34,  45  Kan.  549. 

43  Hornick  v.  Union  Pac.  R.  Co.,  118  P.  60,  85  Kan.  568,  38  L.  R.  A.  (N. 
S.)  826,  Ann.  Cas.  1913A,  208. 

44  Pappe  v.  Post,  101  P.  1055,  23  Okl.  581. 
46  Ott  v.  Elmore,  73  P.  898,  67  Kan.  853. 

Where  a  motion  to  strike  and  a  demurrer  are  sustained  to  an  answer,  and 

(564) 


Art.  9)  DEFECTS  AND  OBJECTIONS  §   663 

A  defendant  who  has  been  brought  in  by  a  supplemental  petition, 
by  answering  and  going  to  trial  waives  questions  of  jurisdiction 
raised  by  a  prior  motion  to  dismiss  on  the  grounds  that  the  original 
petition  had  fully  performed  its  functions  as  a  pleading  in  the  cause 
before  the  supplemental  petition  was  filed,  and  that  the  supplemen- 
tal petition  was  filed  without  notice  to  him.*6 

The  error  in  striking  out  a  supplemental  and  amended  answer 
was  waived  by  filing  a  second  supplemental  and  amended  answer, 
alleging  most  of  the  facts  set  up  in  the  stricken  answer,  which  was 
permitted  to  stand  unchallenged,  as  it  superseded  the  one  stricken 
out.47 

Where  the  petition  sets  forth  the  manner  of  the  indebtedness  of 
defendant  to  plaintiff,  and  defendant's  answer  is  a  general  denial, 
but  at  the  trial  defendant's  evidence  tends  to  establish  a  counter- 
claim, and  no  objection  is  made  to  its  introduction  on  the  ground 
that  the  pleadings  did  not  authorize  it,  if  the  action  is  tried,  and  the 
evidence  admitted  as  though  the  answer  were  sufficient  to  allow 
the  evidence  to  be  introduced,  the  objection  is  waived.48 

In  a  suit  to  foreclose  a  lien  for  materials,  where  there  is  a  gen- 
eral denial,  and  also  denial  of  any  debt,  and  the  case  is  tried  on 
the  issue  of  payment  without  objection,  until  certain  evidence  is 
offered,  the  findings  for  defendant  will  not  be  disturbed  on  the 
ground  that  such  issue  is  not  made  by  the  pleadings.49 

Where  the  petition  did  not  allege  that  the  locomotive  was  de- 
fective, but  defendant  tried  the  case  on  the  assumption  that  the  ex- 
istence of  defects  was  an  issuable  fact,  defendant  could  not  ob- 
ject to  evidence,  introduced,  by  plaintiff  tending  to  show  that  the 
spark  arrester  on  the  engine  was  defective.50 

The  question  of  variance  between  pleading  and  proof  must  be 
raised  at  a  time*  which  will  permit  an  amendment  of  the  pleading 
on  such  terms  as  may  be  just,  and  the  adverse  party  must  not  only 

defendants  by  leave  file  an  amended  answer  repleading  the  eliminated  matter, 
any  error  in  orders  sustaining  the  motion  and  demurrer  is  waived.  Schuber 
v.  McDuffee  (Okl.)  169  P.  642. 

46  Beecher  v.  Ireland,  54  P.  9,  8  Kan.  App.  10. 

47  Robertson  v.  Christenson,  90  Kan.  555,  135  P.  567. 

48  Feidler  v.  Motz,  22  P.  561,  42  Kan.  519. 

49  Chicago  Lumber  Co.  v.  Limerick,  36  P.  710,  53  Kan.  395. 

50  Kansas  City,  Ft.  S.  &  M.  B.  Co.  v.  Chamberlain,  61  Kan.  859,  60  P.  15. 

(565) 


§§  663-664  PLEADINGS  (Ch.  II 

have  been  misled  to  his  prejudice,  but  the  fact  must  be  shown  to  the 
satisfaction  of  the  trial  court.51 

Where,  in  an  action  for  money  loaned,  defendant  answered  that 
the  money  was  invested  in  cattle  in  which  the  parties  were  partners,, 
and  the  court  found  that  the  money  loaned  was  invested  in  part- 
nership cattle,  and  afterwards  defendant  agreed  to  take  plaintiff's 
interest  and  repay  the  amount  invested  by  him,  and  gave  judgment 
for  plaintiff,  no  objection  having  been  made  till  after  judgment, 
there  was  not  a  fatal  variance.52 

An  averment  that  a  certain  person  was  general  manager  of  a 
railway  company,  and  that,  on  behalf  of  the  company,  he  promised 
to  give  a  pass  over  its  roads,  is  a  sufficient  allegation  of  the  au- 
thority of  the  agent,  after  judgment  for  plaintiff,  when  there  is  no 
showing  that  such  averment  was  challenged  at  the  trial.53 

§  664.     Objection  to  introduction  of  any  evidence — Form 

An  objection  to  the  introduction  of  any  evidence  under  a  petition 
is  good  only  when  there  is  a  total  failure  to  allege  in  the  petition 
some  matter  essential  to  recovery,  and  is  not  good  when  the  al- 
legations are  simply  indefinite  or  statements  of  conclusions  of  law.54 
When  this  is  the  only  objection  to  a  petition  its  allegations  will  be 
liberally  construed,  and  when  there  is  not  a  total  failure  of  averment 
as  to  some  essential  matter,  the  allegations  are  simply  incomplete, 
and  objection  to  the  introduction  of  evidence  is  properly  overruled.55 

si  Missouri,  K.  &  T.  Ry.  Co.  v.  Green,  89  P.  1042,  75  Kan.  504. 

The  petition  alleged  that  defendant  was  negligent  in  permitting  the  roof  of 
his  warenouse  to  become  leaky,  and  that  water  came  in  and  fell  upon  plain- 
tiff's goods  stored  there,  andi  that  defendant  negligently  permitted  them  to 
remain  wet,  and  they  thus  became  damaged.  The  proof  seemed  to  show  that 
the  water  came  into  the  room  from  the  street,  and  not  through  the  roof.  Held, 
that  there  was  not  such  a  variance  as  would  warrant  the  court  in  sustaining  a 
demurrer  to  the  evidence.  Red  Ball  Transfer  &  Storage  Co.  v.  Deloe,  30  Okl. 
522,  120  P.  575. 

AVhere  plaintin,  in  an  action  for  injuries,  sought  to  expand  his  charge  of 
negligence  by  proving  the  speed  of  the  train  to  which  testimony  defendants 
objected,  ana  moved  to  strike  it  out  after  it  had  'been  admitted,  and  by  an  in- 
struction sought  to  limit  the  jury's  inquiry  to  the  issue  presented  by  the 
pleading,  a  claim  that  defendants  acquiesced  in  the  enlargement  of  the  issues 
is  not  sustained.  Judgment,  79  P.  673,  70  Kan.  755,  reversed  on  rehearing. 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Wheeler,  83  P.  27,  70  Kan.  7GO. 

5a  Mulhall  v.  Mulhall,  41  P.  109,  3  Okl.  304. 

"  Atchison,  T.  &  S.  F.  R.  Co.  v.  English,  16  P.  82,  38  Kan.  110. 

s*  First  Nat.  Bank  v.  Cochran,  87  P.  855,  17  Okl.  538. 

66  Id. ;  Ball  v.  White,  50  Okl.  429,  150  P.  901 ;  Johnston  v.  Chapman,  38  Okl. 

(566) 


Art.  9)  DEFECTS  AND   OBJECTIONS  §   664 

General  averments  of  fraud  in  a  petition  are  sufficient  as  against 
an  objection  to  the  introduction  of  evidence  thereunder.56  The 
practice  of  questioning  the  sufficiency  of  a  petition  by  objections 
to  evidence  is  not  to  be  encouraged,  and  the  objections  should  be 
overruled,  if  under  any  fair  construction  of  the  petition  any  cause 
of  action  is  stated.57 

42,  131  P.  1076 ;  Abbott  v.  Dingus,  44  Okl.  567,  145  P.  365 ;  Sulsberger  &  Sons 
Co.  v.  Castleberry,  40  Okl.  613,  139  P.  837 ;  Thorp  v.  St.  Louis  &  S.  F.  R.  Co. 
(Okl.)  175  P.  240;  First  Nat.  Bank  v.  Harkey,  63  Okl.  163,  163  P.  273; 
Sharpless  Separator  Co.  v.  Gray,  62  Okl.  73,  161  P.  1074;  Wilson  v.  Eulberg, 
51  Old.  316,  151  P.  1067;  Blackert  v.  Lankford  (Okl.)  176  P.  532;  Missouri,  K. 
&  T.  Ry.  Co.  v.  Murphy,  90  P.  290,  75  Kan.  707 ;  Hogan  v.  Bailey,  110  P.  890, 
27  Okl.  15;  Young  v.  Severy,  49  P.  1024,  5  Okl.  630. 

In  action  for  breach  of  contract,  failure  to  allege  performance  on  plaintiffs 
part  presented  only  by  objection  to  evidence  and  not  by  demurrer  held  imma- 
terial. Capper  v.  Manufacturers'  Paper  Co.,  121  P.  519,  86  Kan.  355. 

The  payment  of  money  to  secure  the  liberty  and  discharge  of  one  who  has 
been  imprisoned  on  at  malicious  prosecution  must  be  specifically  averred  in 
a  suit  to  recover  damages  therefor ;  but  averment  is  sufficiently  made  if  it 
is  declared  in  the  petition  that  the  plaintiff  has  been  "forced  to  pay  out  and 
expend  large  sums  of  money  in  securing  his  liberty  and  discharge,"  if  the  ob- 
jection is  first  made  at  the  trial  to  the  introduction  of  evidence  tending  to 
show  what  payments  have  been  made  by  the  plaintiff  for  that  purpose.  Ten 
Cate  v.  Fansler,  65  P.  375, 10  Okl.  7. 

In  an  action  by  a  servant  for  injuries,  the  petition  alleged  that  "one  V.  was 
employed  by  said  defendant  and  was  in  charge  of  said  machine,  and  that  the 
plaintiff  herein  was  employed  to  take  and  carry  away  the  staves  after  they 
had  been  planed."  It  was  further  alleged  that  defendant  was  the  owner  and 
operator  of  the  plant  in  which  the  machine  referred  to  was  situated,  and  that 
plaintiff  was  obliged  to  obey  a  foreman  of  -a  department  thereof.  No  demurrer 
was  filed,  and  a  motion  to  make  more  definite  did  not  refer  to  the  failure  to 
directly  allege  employment  by  defendant.  Held,  that  a  motion  objecting  to  tne 
introduction  of  testimony  on  account  of  such  failure  was  properly  overruled. 
Brower  v.  Timreck,  71  P.  581,  66  Kan.  770. 

Where  plaintiff  died  pending  action,  amendment  of  petition  by  administra- 
trix, in  whose  name  action  was  revived,  stating  that  plaintiff  died  intestate 
and  that  administratrix  was  duly  appointed  by  probate  court,  had  duly  quali- 
fied, and  was  acting  administratrix  of  plaintiff,  was  sufficient  against  objec- 
tion to  introduction  of  evidence.  Estes  v.  Edgar  Zinc  Co.,  156  P.  758,  97 
Kan.  774. 

An  objection  to  the  introduction  of  evidence  under  a  petition  to  set  aside 
a  deed  to  property  of  which  plaintiff  is  not  in  possession,  alleged  to  have 
T}een  procured  by  undue  influence,  is  properly  overruled,  though  a  prayer  for 
partition  is  joined  with  that  for  other  relief.  Howard  v.  Carter,  80  P.  61,  71 
Kan.  85. 

66  Howard  v.  Carter,  80  P.  61,  71  Kan.  85. 

"Id. 

Where  a  petition  states  a  cause  of  action  for  damages  for  fraud,  and  de- 
fendant answers,  and  trial  is  had  on  that  theory,  an  objection  that  the  peti- 

(567) 


§    664  PLEADINGS  (Ol.  It 

Every  legal  intendment  is  indulged  in  support  of  an  answer  at- 
tacked, and  if  it  may  be  construed  to  state  a  defense,  etc.,  objection 
to  evidence  in  support  of  answer  will  not  be  sustained  merely  be- 
cause allegations  are  indefinite  or  mere  legal  conclusions.58 

A  departure  in  the  reply  from  the  petition,59  or  the  failure  to  veri- 
fy a  pleading,  cannot  be  taken  advantage  of  by  objection  to  the  in- 
troduction of  any  evidence  thereunder,  but  should  be  raised  by  mo- 
tion to  strike  out.60 

Misjoinder  of  causes  of  action  cannot  be  met  by  an  objection  to 
introduction  of  evidence.61 . 

Failure  of  a  petition  to  state  a  cause  of  action  may  be  presented 
by  an  objection  to  the  introduction  of  any  evidence.62 

An  objection  to  the  introduction  of  evidence  on  the  ground  that 
the  petition  does  not  state  a  cause  of  action  is  equivalent  to  a 
demurrer  to  the  petition  and  cannot  be  used  to  raise  the  objection  of 
the  uncertainty  of  the  petition,63  and  raises  no  issue  of  fact.64 

Where  the  complaint  does  not  state  facts  sufficient  to  constitute 
a  cause  of  action,  and  an  objection  is  made  by  defendant  to  the  in- 
troduction of  any  evidence  under  it  for  that  reason,  the  objection 
should  be  sustained,  even  though  defendant  has  answered.65  But 
in  the  absence  of  a  demurrer  or  motion,  unless  there  is  a  total  omis- 
sion to  allege  some  essential  material  fact,  the  petition  will  be  held 
good  on  an  objection  to  the  introduction  t)f  evidence,66  and  the 


tion  was  not  drawn  upon  any  definite  theory  cannot  be  raised  by  objection  to 
the  evidence.    Allen  v.  Datschewski,  142  P.  953,  92  Kan.  933. 

58  First  Nat.  Bank  v.  Humphreys  (Okl.)  168  P.  410. 

59  St.  Paul  Fire  &  Marine  Ins.  Co.  v.  Mountain  Park  Stock  Farm  Co.,  99  P. 
647,  23  Okl.  79;    Merchants'  &  Planters'  Ins.  Co.  v.  Marsh,  125  P.  1100,  34 
Okl.  453,  42  L.  R.  A.  (N.  S.)  996;    Purcell  v.  Corder,  124  P.  457,  33  Okl.  68; 
Landon  v.  Morehead,  126  P.  1027,  34  Okl.  701. 

«o / Doughty  v.  Funk,  103  P.  634,  24  Okl.  312. 

61  State  Exch.  Bank  v.  National  Bank  of  Commerce  (Okl.)  174  P.  796,  2  A. 
L.  B.  211;  Same  v.  Traders'  Nat.  Bank  (Okl.)  174  P.  799. 

e2  Lankford  v.  Schroeder,  47  Okl.  279,  147  P.  1049,  L.  R.  A.  1915F,  623. 

63  wey  v.  City  Bank,  116  P.  943,  29  Okl.  313 ;    Shultz  v.  Jones,  3  Okl.  504,  41 
P.  400. 

64  Cowart  v.  Parker-Washington  Co.,  136  P.  153,  40  Okl.  56. 
05  Church  v.  Atchison,  T.  &  S.  F.  R.  Co.,  29.  P.  530,  1  Okl.  44. 

Where  a  petition  fails  to  state  a  cause  of  action,  the  trial  court  should 
sustain  an  objection  to  the  introduction  of  evidence  thereunder.  Willoughby 
v.  Ball,  90  P.  1017,  18  Okl.  535. 

ee  Marshall  v.  Homier,  74  P.  368,  13  Okl.  264. 

(568) 


Art.  9)  DEFECTS  AND  OBJECTIONS  §  664 

court  will  consider  all  the  pleadings  in  the  case,  and  if,  'from  all 
of  them,  it  can  find  that  there  is  a  cause  of  action  for  plaintiffs,  the 
motion  will  be  overruled.87 

Where  a  petition  states  a  cause  of  action  in  general  terms,  and 
defendant  answers,  he  cannot  by  'demurrer  to  the.  evidence  question 
the  sufficiency  of  the  petition.68 

Testimony  tending  to  support  the  allegation  will  not  be  exclud- 
«d,  because  not  specifically  pleaded,  and  where  no  motion  is  made 
to  make  it  more  certain.69 

Where  the  petition  alleges  ownership  generally,  but  the  reply  ad- 
mits the  ownership  to  be  special,  as  that  of  a  mortgagee,  an  objec- 
tion to  evidence  under  the  repugnant  matter  in  the  reply  should  be 
sustained.70 

An  objection  to  any  evidence  under  the  petition,  because  of  the 
omission  of  the  allegations  of  certain  material  facts  is  waived,  if 
evidence  is  introduced  on  the  trial  to  prove  such  facts,  without  ob- 
jection.71 

When  it  is  essential  that  one  insisting  on  specific  performance 
make  out  complete  equity,  he  must  show  that  the  contract  sued  on 
is  capable  of  being  specifically  enforced,  and  where  it  is  disclosed 
that  the  contract  is  unreasonable  in  its  terms  and  void  under  the 
statute  of  frauds  and  that  the  acts  done  are  not  such  that  dam- 
ages would  be  an  inadequate  remedy,  and  plaintiff  has  within  his 
control  money  more  than  sufficient  to  compensate  him  for  any  loss 
sustained,  objection  to  the  introduction  of  evidence  thereunder  is 
properly  sustained.72  Where  the  only  objection  to  a  petition  is  by 
objection  to  the  introduction  of  evidence  at  the  trial,  the  court  will 
determine  only  whether  it  states  a  cause  of  action  in  equity,  and  if 

87  Id. ;  Missouri,  O.  &  G.  Ry.  Co.  v.  McClellan,  130  P.  916,  35  Okl.  609 ; 
De  Watteville  v.  Sims,  44  Okl.  708,  146  P.  224 ;  Litsch  v.  Kansas  Gas  &  Elec- 
tric Co.,  148  P.  632,  95  Kan.  496. 

If  a  pleading  treated  as  an  answer  with  a  demurrer  waived  states  a  cause 
of  action,  though  defectively,  an  objection  to  the  introduction  of  testimony 
will  be  overruled.  State  Exch.  Bank  v.  National  Bank  of  Commerce  (Okl.) 
174  P.  796,  2  A.  L.  R.  211;  Same  v.  Traders'  Nat.  Bank  (Okl.)  174  P.  799. 

68  Elliott  v.  Hudson,  113  P.  307,  84  Kan.  7. 

69  St.  Louis  &  S.  F.  Ry.  Co.  v.  Henry,  46  Okl.  526,  149  P.  132. 

70  Johnson  v.  State  Bank  of  Seneca,  52  P.  860,  59  Kan.  250. 

71  Baden  v.  Bertenshaw,  74  P.  639,  68  Kan.  32. 

72  Haffner  v.  Dobrinski,  88  P.  1042,  17  Okl.  438,  judgment  affirmed  30  S.  Ct. 
172,  215  U.  S.  446,  o4  L.  Ed.  277. 

(569) 


§    664  PLEADINGS  (Ch.  11 

the  facts  pleaded  are  sufficient,  and  in  their  nature  properly  cog- 
nizable by  a  court  of  equitable  jurisdiction,  the  objection  will  be 
overruled.73 

Objection  to  evidence  because  incompetent,  irrelevant,  and  im- 
material is  insufficient  to  test  sufficiency  of  petition,  counterclaim, 
etc.,  or  whether  it  is  a  proper  subject  of  litigation  when  it  has  not 
been  tested  by  demurrer,  motion,  or  objection  to  introduction 
of  any  evidence  on  ground  that  pleading  states  no  cause  of  action 
or  defense.74 

An  objection  to  the  introduction  of  evidence  under  an  answer 
should  be  sustained,  where  it  clearly  appears  that  the  answer  fails 
to  state  a  defense.75 

Where  a  cross-petition  does  not  state  a  cause  of  action  against 
plaintiff,  the  court  should  decline  to  hear  evidence  in  support 
thereof.76 

Where  the  question  of  a  variance  between  the  pleading  and  proof 
is  first  raised  by  a  demurrer  to  the  evidence,  it  will  not  be  regarded 
as  fatal,  when  it  appears  that  the  party  objecting  was  neither  sur- 
prised, misled,  or  prejudiced  thereby.77  • 


OBJECTION  TO  INTRODUCTION  OF 

(Oral.) 

Comes  now  the  defendant  and  objects  to  the  introduction  of  any 
evidence,  for  the  reason  that  plaintiff's  petition  filed  herein  wholly 
fails  to  allege  facts  sufficient  to  constitute  a  cause  of  action  in 
favor  of  the  plaintiff  and  against  this  defendant. 

73  Id. 

7*  Scanlan  v.  Barkley  (Okl.)  178  P.  674. 

75  Hilton  v.  Bailey,  46  Okl.  759,  149  P.  863. 

Overruling  of  objection  to  evidence  by  the  defendant  purchaser,  who  set  up 
failure  of  title  as  a  defence,  held  error,  where  his  answer  did  not  contain  an 
offer  to  reconvey.  Herron  v.  Harbour,  57  Okl.  71,  155  P.  506. 

Where  a  defendant  is  estopped  from  making  a  claim  of  damages  or  question- 
ing the  amount  of  a  debt  by  a  former  judgment  or  decree,  it  is  not  error  to 
sustain  an  objection  to  the  introduction  of  evidence  when  offered  to  estab- 
lish such  defenses.  Engle  v.  Legg,  39  Okl.  475,  135  P.  1058. 

76  McConnell  v.  Davis,  46  Okl.  201,  148  P.  687. 

77  Collier  v.  Monger,  75  Kan.  550,  89  P.  1011. 

(570) 


Art.  10)  MOTIONS  AND   ORDERS  THEREON 

ARTICLE  X 
MOTIONS  AND  ORDERS  THEREON 

DIVISION  I.— MOTIONS  IN  GENERAL 
Sections 

665.  Definition — Several   objects. 

666.  Notice — Form. 

667.  Service — Return — Form. 

668.  By  officer — Fees. 

669.  Appearance. 

670.  Affidavits  and  pleadings  to  motion. 

671.  Hearing. 

672.  Effect  of  continuance. 
673-  Second  motion. 

DIVISION  II.— ORDERS 

674.  Ruling — Form. 

675.  Law  of  the  case. 

676.  Nunc   pro   tune   order — Form. 

677.  Entry — Notice. 

678.  Vacating  and  modifying. 

DIVISION  III.— PARTICULAR  MOTIONS 

679.  Motion  to  dismiss. 

680.  Motion  for  judgment  on  the  pleadings — Nature — Form. 

681.  Grounds  for  sustaining  or  overruling. 

682.  Departure. 

683.  Judgment  against  verdict. 

684.  Motion  to  strike  from  files — Form. 

685.  Affirmative  pleading. 

686.  Defensive  pleadings. 

687.  Demurrer. 

688.  Departure. 

689.  Limitations. 

690.  Amended  pleading. 

691.  Failure  to  amend. 

692.  Motion  to  strike  from  pleading — Form. 

693.  Motion  to  strike  parties — Form. 

694.  Motion  to  make  more  definite  and  certain. 

695.  Form  and  requisites. 

696.  Time  of  making. 

697.  Waiver — Dismissal. 

698-    Motion  to  require  pleader  to  separately  state  and  number. 

699.  Form  and  requisites. 

700.  Waiver — Dismissal. 

701.  Motion  to  require  election — Form. 

702.  Time  of  making. 

(571) 


§§  665-667  PLEADINGS  (Ch.  11 

DIVISION  I. — MOTIONS  IN  GENERAL 

§  665.     Definition — Several  objects 

"A  motion  is  an  application  for  an  order,  addressed  to  the  court, 
or  a  judge  in  vacation,  or  by  any  party  to  a  suit  or  proceeding,  or 
one  interested  therein,  or  affected  thereby."  78 

"Several  objects  may  be  included  in  the  same  motion,  if  they 
all  grow  out  of,  or  are  connected  with,  the  action  or  proceeding  in 
which  it  is  made."  79 

§  666.     Notice— Form 

"Where  notice  of  a  motion  is  required,  it  must  be  in  writing,  and 
shall  state  the  names  of  the  parties  to  the  action  or  proceeding  in 
which  it  is  made,  the  name  of  the  court  or  judge  before  whom  it  is 
to  be  made,  the  place  where  and  the  day  on  which  it  will  be  heard, 
the  nature  and  terms  of  the  order  or  orders  to  be  applied  for;  and 
if  affidavits  are  to  be  used  on  the  hearing,  the  notice  shall  state 
that  fact,  and  it  shall  be  served  a  reasonable  time  before  the  hear- 
ing." 80 

NOTICE  OF  MOTION 

(Caption.) 

To  the  Above  Named  Plaintiff,  A.  B.,  and  His  Attorney  of  Record, 

G.  H.: 

You  and  each  of  you  are  hereby  notified  that  said  defendant,  C. 
D.,  has  filed  in  the  above  entitled  cause  his  motion  to  (stating  kind 
of  motion  filed),  a  copy  ofl  which  is  hereto  attached,  and  that  the 

same  will  be  presented  in  said  court  on  the  —    —  day  of , 

19 — ,  at o'clock, ,  M.,  or  as  soon  thereafter  as  counsel 

can  be  heard. 

X.  Y.,  Attorney  for  Defendant. 

§  667.     Service — Return — Form 

"Notices  of  motions,  mentioned  in  this  article,  may  be  served 
by  a  sheriff,  coroner  or  constable,  the  party  or  his  attorney,  or  by 
any  other  person,  and  the  return  of  any  such  officer  or  affidavit  of 
any  such  person  shall  be  proof  of  service ;  the  service  shall  be  on  the 

7  s  Rev.  Laws  1910,  §  5310. 
TO  Rev.  Laws  1910,  §  5311. 
so  Rev.  Laws  1910,  §  5312. 

(572) 


Art.  10)  MOTIONS   AND   ORDERS   THEREON  §§   6G7-GG9 

party,  or  his  attorney  of  record,  and  in  case  there  is  more  than  one 
party  adverse  to  such  motion,  service  shall  be  made  on  each  party 
or  his  attorney."  81 

RETURN  OF  NOTICE  OP  MOTION 

(Acceptance  of  Service) 

Receipt  of  a  copy  of  the  above  and  foregoing  notice,  and  of  a 
copy  of  the  motion  therein  referred  to,  is  hereby  acknowledged  on 

behalf  of  plaintiff  this day  of ,  19 — . 

G.  H.,  Attorney  for  Plaintiff. 

(Affidavit  of  Personal  Service] 
(Venue.) 

X.  Y.,  being  duly  sworn,  .on  oath  says :  That  he  is  the  attorney 
for  the  defendant  in  the  above  entitled  action ;  that  he  served  the 

attached  notice  on  the  plaintiff  therein,  A.  B.,  on  the  day 

of ,  19 — ,  by  delivering  to  said  A.  B.,  personally,  at  his  of- 
fice in  the  city  of ,  a  true  and  correct  signed  duplicate  orig- 
inal thereof.  X.  Y. 

Subscribed  and  sworn  to  before  me  this  day  of  -       — , 

19—. 

,  Notary  Public. 

My  commission  expires  ,  19 — . 

§  668.     By  Officer — Fees 

"The  service  of  a  notice  shall  be  made  in  the  manner  required 
by  law  for  the  service  of  a  summons ;  and  when  served  by  an  of- 
ficer, he  shall  be  entitled  to  like  fees."  82 

§  669.     Appearance 

The  journal  entry  of  a  ruling  of  a  trial  court  sustaining  a  motion 
to  retax  costs,  reciting  that  the  adverse  party  excepted  to  the  rul- 
ing, sufficiently  shows  an  appearance.83 

si  Rev.  Laws  1910,  §  5313. 
82  Rev.  Laws  1910,  §  5314. 
88  Teagarden  v.  Board  of  Com'rs  of  Linn  County,  49  Kan.  146,  30  P.  171. 

(573) 


§§670-673  PLEADINGS  (Ch.  11 

§  670.     Affidavits  and  pleadings  to  motion 

On  the  hearing  of  a  motion  addressed  to  the  discretion  of  the 
court  and  supported  by  affidavit,  it  is  not  error  for  the  court  to  re- 
ceive and  consider  counter  affidavits  tending  to  refute  facts  stated 
in  affidavits  supporting  the  motion  and  presenting  other  grounds 
for  denying  it.84 

Answers  or  other  pleadings  to  a  motion  are  not  required,  and 
there  is  no  provision  for  making  up  the  issues  for  the  trial  of  mo- 
tions.85 

§  671.     Hearing 

Where  numerous  motions  are  pending1  for  executions  against 
stockholders  of  a  corporation,  and  a  petition  is  filed  to  set  aside 
the  judgment  against  the  corporation  as  to  them,  and  in  the  ab- 
sence of  the  district  judge  the  county  judge  grants  a  temporary 
injunction  against  the  proceeding  on  the  motions,  the  district 
court,  in  ordering  that  the  hearing  of  the  motions  be  postponed  un- 
til further  orders  are  made  in  the  injunction  proceedings,  does  not 
abuse  its  discretion.88 

§  672.     Effect  of  continuance 

Where  a  motion  is 'made  during  the  term  and  continued  to  an- 
other term,  when  it  is  decided,  it  is  the  same  as  if  the  decision  was 
made  at  the  term  when  it  was  filed.87 

§  673.     Second  motion 

After  a  motion  has  been  overruled,  the  movant  has  no  right  to 
file  a  second  motion  for  the  same  relief  on  grounds  existing  at 
the  time  of  the  prior  motion.  It  can  only  be  done  on  leave  of 
court,  which  is  seldom  granted.88 

Where  a  party  concludes  that  his  motion  is  defective  or  insuffi- 
cient, he  should  apply  and  obtain  leave  to  amend  or  withdraw  his 
first  motion  before  filing  a  second  motion.88 

s*  Randall  v.  Randall,  101  Kan.  341,  166  P.  516. 

ss  Berry  v.  Dewey  (Kan.)  170  P.  1000. 

se  Gurney  v.  Steffens,  43  P.  241,  56  Kan.  295. 

ST  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Lowrey,  61  Okl.  126,  160  P.  716. 

ss  Adams  v.  Lockwood,  Englehart  &  Co.,  30  Kan.  373,  2  P.  626. 

so  KjellandSr  v.  Kjellander,  139  P.  1013,  92  Kan.  42. 

(574) 

\ 


Art.  10)  -MOTIONS  AND  ORDERS   THEREON  §§   674~675 

DIVISION  II. — ORDERS 

§  674.     Ruling — Form 

A  ruling  on  a  motion  will  not  be  set  aside,  where  there  were 
sufficient  grounds  to  sustain  it,  though  such  grounds  were  not  re- 
lied on  by  the  party  seeking  relief.90 

'ORDERS  ON  MOTIONS 

(Caption.) 

This  cause  coming  on  to  be  heard  on  the  motion  of  the  defend- 
ant to  require  the  plaintiff  to  make  his  petition  more  definite  and 
certain  (or  state  other  kind  of  motion),  due  proof  of  notice  and 
copy  of  said  motion  on  G.  H.,  attorney  for  plaintiff  having  been 
made,  and  the  court  having  heard  said  motion  and  being  fully 
advised  in  the  premises : 

It  is  ordered  that  the  plaintiff's  petition  herein  be  made  more 
definite  and  certain  by  amendment  in  the  following  allegations 
(stating  them  and  showing  in  what  particular  to  be  amended)  ; 
and  leave  to  amend  said  petition  in  that  respect  is  hereby  granted, 
said  amendment  to  be  filed  within days  from  this  date. 

Dated  this  day  of  ,  19 — . 

,  Judge. 

§  675.     Law  of  the  case 

A  ruling  on  a  motion  to  suppress  a  deposition  on  grounds  not 
appearing  therein  does  not  become  the  law  of  the  case,  so  as  to 
require  the  court,  when  the  motion  is  renewed  at  a  subsequent  trial 
and  supported  by  new  proof  of  the  invalidity  of  the  deposition,  to 
overrule  it  without  consideration.91 

Where  an  order  is  made  denying  a  motion  to  quash  service  of 
summons,  and  a  final  judgment  is  rendered,  and  no  appeal  is  tak- 
en, the  matter  arising  on  the  motion  to  quash  becomes  res  judica- 
ta  and  a  bar  to  the  right  of  defendant  to  raise  the  same  question 
on  a  subsequent  motion  involving  the  same  subject-matter.90 

»o  Hancock  v.  Youree,  106  P.  841,  25  Okl.  460. 

si  Bethany  Hospital  Co.  v.  Hale,  77  P.  537,  69  Kan.  616. 

92  Rogers  v.  McCord  Collins  Mercantile  Co.,  91  P.  864,  19  Okl.  115. 

(575) 


§    676  PLEADINGS  (Cll.  11 

§  676.     Nunc  pro  tune  order — Form 

Every  court  of  record  may,  on  proper  application,  enter  its  or- 
ders, by  nunc  pro  tune  entry,  which  the  clerk  has  by  mistake  omit- 
ted from  the  record.  The  jurisdiction  to  order  a  nunc  pro  tune 
entry  is  not  lost  by  lapse  of  time,  where  no  intervening  rights  are 
affected.93  Such  order  may  be  made  either  on  parol  or  on  written 
evidence,94  and  is  not  open  to  collateral  attack  by  a  party  to  a 
proceeding,  because  not  made  upon  sufficient  evidence,  or  because 
of  erroneous  findings  of  fact,  or  because  not  supported  by  the  find- 
ings of  fact.95  Though  lapse  of  time  may  call  for  stronger  testi- 
mony that  an  order  was  in  fact  made  and  as  to  the  extent  thereof, 
and  as  to  the  effect  of  the  belated  entry,  when  it  is  made,  it  may 
be  enforced  as  if  entered  when  originally  made.96 

Application  for  Order  Nunc  Pro  Tune — Nunc  Pro  Tune  Order 

MOTION 

(Caption.) 

Comes  now  the  said  plaintiff,  A.  B.,  and  respectfully  represents 
and  shows  to  the  court  that  the  order  of  this  court  made  and  en- 
tered herein  on  the  day  of  —  — ,  19 — ,  recites  that  (set- 
ting forth  facts  incorrectly  stated  in  order),  whereas  (state  what 
facts  were),  and  by  a  clerical  error  and  mistake  the  said  facts  were 
erroneously  stated  in  said  order. 

(Or,  that  the  order  of  this  court  made  the day  of , 

19 — ,  overruling  the  plaintiff's  motion  for  judgment  on  the  plead- 
ings herein,  and  allowing  plaintiff  exceptions  to  such  ruling,  have 
not  been  regularly  brought  up  and  recorded  by  the  clerk  of  this 
court.) 

Wherefore  plaintiff  moves  the  court  to  enter  an  order  nunc  pro 
tune  herein,  correcting  said  order  (or  record),  to  show  (state  cor- 
rection to  be  made). 

X.  Y.,  Attorney  for  Plaintiff. 

as  Courtney  v.  Barnett  (Okl.)  166  P.  207. 

94  Where  an  order  is  made  by  the  probate  court,  and  through  mistake  or 
neglect  is  not  entered  on  the  records,  the  court  can  enter  such  order  nunc  pro 
tune  even  after  considerable  time  and  on  either  parol  or  written  evidence. 
Graden  v.  Mais,  112  P.  107,  83  Kan.  481. 

95  Courtney  v.  Barnett  (Okl.)  166  P.  207. 
»6  Graden  v.  Mais,  112  P.  107,  83  Kan.  481. 

(576) 


Art.  10)  MOTIONS   AND   ORDERS   THEREON  §§   676-678 

ORDER 

(Caption.) 

This  court  having,  on  the day  of ,  19 — ,  made  and 

entered  in  the  above  entitled  cause  its  order  reciting  that  (set 
forth  facts  incorrectly  stated  in  order),  whereas  (set  forth  what 
facts  were),  and  by  a  clerical  error  and  mistake  the  said  facts  were 
erroneously  stated  in  said  order: 

It  is  therefore  hereby  ordered  that  said  order  be  and  the  same 
is  hereby  corrected  and  amended,  so  as  to  state  that  (state  cor- 
rections). 

Dated ,  19 — ,  this  order  to  be  entered  nunc  pro  tune  as  of 

,  19-. 

• ,  Judge. 

§  677.     Entry — Notice 

The  statute  requiring  orders  made  out  of  court  to  be  entered  on 
the  journal  is  directory,  and  compliance  therewith  is  not  essential 
to  the  validity  of  the  orders.97 

In  the  absence  of  some  statute  or  rule  of  court  requiring  it,  par- 
ties who  rely  upon  a  custom  of  the  clerk  to  notify  them  when 
orders  are  entered  upon  motions  pending  in  their  cases,  do  so  at 
their  peril.98 

§  6J8.     Vacating  and  modifying 

A  court  of  record  has  inherent  power  on  its  own  motion  to  va- 
cate or  modify  its  orders,  however  conclusive,  during  the  term  of 
their  rendition  or  entry.99 

An  order  is  void  which  is  made  by  the  superior  court  at  a  sub- 
sequent term,  vacating  a  former  order  without  notice  on  its  own 
motion,  without  complying  with  the  statutes  relative  to  the  review 
of  orders  on  motions.1 

97  Keenan  v.  Chastain,  64  Okl.  16,  164  P.  1145,  withdrawing  opinions  on 
second  rehearing  157  P.  326 ;    Rev.  Laws  1910,  §  5317 ;    Mutual  Life  Ins.  Co. 
of  New  York  v.  Buford,  61  Okl.  158.  160  P.  928. 

98  Western  Coal  &  Mining  Co.  v.  Green,  64  Okl.  53,  166  P.  154. 

»»  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Lowrey,  61  Okl.  126,  160  P.  716. 
i  Hawkins   v.   Hawkins,  153   Pac.  844,  52  Okl.   786;    Rev.  Laws  1910,  §§ 
5267-5269. 

HON.PL.&  PBAC.-37  (577) 


5§  679-680  PLEADINGS  (Ch.  11 


DIVISION  III. — PARTICULAR  MOTIONS 

§  679.     Motion  to  dismiss 

The  question  of  a  former  adjudication  cannot  be  raised  by  a 
motion  to  dismiss.2 

§  680.     Motion  for  judgment  on  the  pleadings — Nature — Form 

A  motion  for  judgment  on  pleadings  is  in  the  nature  of  a  demur- 
rer, and  is  in  substance  both  a  motion  and  a  demurrer;  being  a 
demurrer  because  it  attacks  the  sufficiency  of  pleadings,  and  a  mo- 
tion because  an  application  for  an  order  for  judgment.3  It  is  not 
'available,  however,  to  dispose  of  the  merits  of  the  case.4 

Every  legal  intendment  is  to  be  indulged  in  favor  of  the  plead-, 
ing  attacked,5  and  if  there  is  any  reasonable  doubt  as  to  its  suffi- 
ciency, a  judgment  on  the  pleadings  should  not  be  granted.6 

2  Attica  State  Bank  v.  Benson,  54  P.  1037,  8  Kan.  App.  566. 

For  form  of  motion  to  dismiss,  see  ante,  §  533. 

s  Deming  Inv.  Co.  v.  Reed  (Okl.)  179  P.  35. 

A  motion  for  judgment  on  the  pleadings  is  in  the  nature  of  a  demurrer, 
and  tests  the  sufficiency  of  the  pleadings  and  presents  a  question  of  law  as 
to  whether  the  facts  alleged  are  a  defense.  Schuber  v.  McDuffee  (Okl.)  169 
P.  642;  Oliphant  v.  Crane  (Okl.)  172  P.  1073;  Mires  v.  Hogan  (Okl.),  192 
P.  811. 

In  action  on  note  and  to  foreclose  mortgage  securing  it,  plaintiff's  motion 
for  judgment  on  the  pleadings  held  properly  sustained.  Kerr  v.  Mcffinney 
(Okl.)  170  P.  685. 

4  Peck  v.  First  Nat  Bank  of  Claremore,  50  Okl.  252,  150  P.  1039. 

s  Every  legal  intendment  is  indulged  in  support  of  an  answer  attacked, 
and  if  it  may  be  construed  to  state  a  defense,  a  motion  for  judgment  on  the 
pleadings  will  not  be  sustained  merely  because  allegations  are  indefinite  or 
mere  legal  conclusions.  First  Nat.  Bank  v.  Humphreys  (Okl.)  168  P.  410. 

6  If  there  is  any  reasonable  doubt  as  to  the  sufficiency  of  the  pleading, 
judgment  on  the  pleadings  will  not  be  granted.  Peck  v.  First  Nat.  Bank  of 
Claremore,  50  Okl.  252,  150  P.  1039.  Where  it  is  necessary  for  plaintiff  to 
file  reply  to  new  matter  set  up  in  the  answer,  it  is  reversible  error  to  render 
judgment  on  the  pleadings  on  plaintiff's  motion  after  his  reply  is  filed.  Id. 

A  motion  for  judgment  on  the  pleadings  in  a  justice  court  should  be  over- 
ruled where  there  is  any  reasonable  doubt  as  to  its  sufficiency.  Earl  v.  Tyler, 
128  P.  269,  36  Okl.  179. 

A  motion  for  judgment  on  the  pleadings,  where  filed  by  plaintiff  to  de- 
fendant's answer,  should  be  granted  only  when  such  answer,  allowing  every 
reasonable  intendment  in  its  favor,  does  not  deny  or  state  a  defense  to  the 
material  allegations  of  the  pleading.  Cobb  v.  Wm.  Kenefick  Co.,  100  P.  545, 
23  Okl.  440. 

On  motion  for  judgment  on  averments  in  petition  and  opening  statement 
of  counsel,  they  should  be  liberally  interpreted.  Moffatt  v.  Fouts,  160  P. 
1137,  99  Kan.  118. 

(578) 


Art.  10)  MOTIONS  AND   ORDERS   THEREON  §§    680-681 

A  motion  for  judgment  on  the  pleadings  is  in  the  nature  of  a 
demurrer,  and  admits  for  its  purpose  the  truth  of  all  facts  well 
pleaded  by  the  opposite  party.7 

It  invokes  the  trial  court's  judgment  on  pleaded  and  undisputed 
facts,  and  the  judgment  is  equivalent  to  a  ruling  on  a  demurrer.8 

The  district  court  has  the  inherent  power  to  render  a  judgment 
on  the  pleadings  without  a  motion.9 


MOTION  FOR  JUDGMENT  ON  THE  PLEADINGS 

(Caption.) 

Comes  now  the  above  named  plaintiff,  A.  B.,  and  moves  the 
court  to  enter  judgment  on  the  pleadings  in  the  above  entitled 
action,  as  prayed  for  in  plaintiff's  petition,  on  the  ground  and  for 
the  reason  that  the  answer  and  cross-petition  filed  herein  are  sham, 
frivolous,  and  wholly  insufficient  to  constitute  a  defense  to  the 
said  action,  and  wholly  barren  of  any  equities  or  claims  of  right  in 
the  defendant  to  entitle  him  to  the  relief  sought,  or  to  any  equita- 
ble, legal,  or  other  relief  whatsoever. 

X.  Y.,  Attorney  for  Plaintiff. 

§  681.    Grounds  for  sustaining  or  overruling 

A  motion  for  judgment  on  the  pleadings  should  be  denied  where 
the  pleadings  raise  a  question  of  fact.10  Hence  a  motion  by  plain- 
tiff for  judgment  on  the  pleadings  should  be  denied,  where  the 

7  C.  E.  Sharp  Lumber  Cp.  v.  Kansas  Ice  Co.,  142  P.  1016,  42  Okl.  689. 

A  motion  for  a  judgment  on  the  pleadings  like  a  demurrer  admits  the 
truth  of  all  well-pleaded  facts  in  the  pleadings  of  the  opposing  party.  Dem- 
ing  Inv.  Co.  v.  Reed  (Okl.)  179  P.  35.  A  motion  for  judgment  on  the  pleadings 
may  be  carried  back  and  sustained  against  a  prior  pleading  of  the  movant, 
and  the  court  will  consider  the  whole  record  and  give  judgment  for  the 
party  who  on  the  whole  appears  entitled  to  it.  Id. 

Motion  for  judgment  on  the  pleadings  admits  for  its  purpose  the  truth  of 
all  the  facts  well  pleaded  by  the  opposite  party.  Griffin  v.  Gulp  (Okl.)  174 
P.  495. 

s  Smith  v.  Lundy,  173  P.  275,  103  Kan.  207. 

a  Mires  v.  Hogan  (Okl.)  192  P.  811. 

10  Cobble  v.  Farmers'  Nat.  Bank  of  Tecumseh,  Okl.,  53  Okl.  814,  158  P.  364; 
Franklin  v.  Ward  (Okl.)  174  P.  244;  St.  Louis  &  S.  F.  R.  Co.  v.  Kerns,  136 
P.  169,  41  Okl.  167 ;  Noland  v.  Owens,  74  P.  954,  13  Okl.  408 ;  Smith  v.  Jos. 
W.  Moon  Buggy  Co.  (Okl.)  169  P.  875 ;  Chapman  v.  Tallant,  42  P.  61,  1  Kan. 
App.  799. 

(579) 


§    681  PLEADINGS  (Ch.  11 

answer  raises  any  issue  of  fact,11  though  by  way  of  general  denial,12 
unless  there  be  an  agreed  statement  of  facts  which  contains  some- 

11  It  is  error  to  sustain  a  motion  for  judgment  on  the  pleadings,  where 
there  is  on  file,  undisposed  of,  an  answer  of  one  of  the  defendants,  setting 
forth  that  plaintiff  is  indebted  to  him  on  account  in  a  sum  in  excess  of  plain- 
tiff's demand.     Stauffer  v.  Campbell,  30  Okl.  76,  118  P.  391. 

Where  the  answer  states  a  defense  to  a  cause  of  action  pleaded,  it  is  error 
to  render  judgment  for  plaintiff  on  the  pleadings  and  opening  statement. 
Mascho  v.  Johnson,  49  Okl.  646,  153  P.  630;  Mackey  v.  Boswell,  63  Okl.  20, 
162  P.  193. 

When  it  appears  on  the  face  of  a  note  sued  on  that  it  is  barred  by  the 
statute  of  limitations,  and  the  only  evidence  that  it  is  not  barred  consists 
in  alleged  promises  in  writing  to  pay,  made  within  the  statutory  period,  and 
such  alleged  promises  are  denied  under  oath,  plaintiff  is  not  entitled  to  a 
judgment  on  the  pleadings ;  and  the  fact  that  defendant  added,  to  said  denial 
under  oath,  the  plea  of  payment  within  the  statutory  period,  is  immaterial. 
Smith  v.  Beeler,  29  P.  1087,  48  Kan.  669. 

Where,  in  an  action  on  a  note,  an  answer  was  filed  alleging  that  the  real 
owner  of  the  note  and  the  makers  resided  in  different  counties,  and  that  the 
owner,  to  compel  the  makers  to  leave  the  county  of  their  residence  to  defend 
the  action,  transferred  it  without  consideration  to  plaintiff  and  caused  him 
to  commence  an  action  against  the  makers  and  owner  as  indorser  in  the 
county  in  which  he  resided,  it  was  error  to  render  judgment  on  the  plead- 
ings against  the  makers  on  the  ground  that  the  answer  did  not  state  a  de- 
fense to  the  note,  for  the  facts  stated  showed  that  the  court  had  no  juris- 
diction to  hear  the  merits  of  the  controversy.  Freight  v.  Wyandt,  99  P.  611, 
79  Kan.  309. 

It  is  error  to  sustain  a  motion  for  judgment  on  the  pleadings  where  the 
answer  properly  raised  the  bar  of  limitations  and  the  statute  of  frauds  and 

12  in  replevin,  answer  by  defendant,  pleading  general  denial,  and  also  af- 
firmative defense  admitting  execution  of  note  and  mortgage  on  which  claim 
for  possession  was  based  raises  question  of  fact,  so  that  judgment  on  plead- 
ings is  improper.    Williams  v.  Gibson  Bros.,  60  Okl.  147,  159  P.  649. 

A  plaintiff  who  seeks  to  restrain  a  city  of  the  first  class  from  collecting  a 
special  tax  on  his  property,  on  account  of  the  cost  of  the  improvement  of  a 
street  upon  which  his  property  is  situate,  is  not  entitled  to  a  judgment  on  the 
pleadings,  when  an  answer  by  said  city  is  on  file,  verified  by  the  city  attorney, 
that  is  in  effect  a  general  denial.  McCrea  v.  City  of  Leavenworth,  27  P.  129, 
46  Kan.  767. 

Where  in  an  action  on  an  oral  agreement  to  pay  rent  defendant  filed  a 
general  denial,  a  motion  for  judgment  on  the  pleadings  was  properly  denied. 
Dunn  v.  Anderson,  51  Okl.  280,  151  P.  1045. 

It  is  not  error  to  deny  judgment  on  the  pleadings,  where  the  answer  is  a 
general  denial  sufficient  to  put  in  issue  all  the  averments  of  the  petition. 
Barnes  v.  Davis,  30  Okl.  511,  120  P.  275. 

Where  two  separate  and  well-pleaded  causes  of  action  are  united  in  one 
petition,  and  a  general  denial  is  filed  by  the  defendants,  and  also  a  good 
plea  of  a  former  adjudication  as  to  one  of  the  causes  only,  it  is  error  for  the 
court  to  sustain  a  motion  for  judgment  on  the  pleadings  as  to  both  causes  of 
action.  Fouts  v.  Pettigrew,  74  P.  1107,  68  Kan.  289. 

(580) 


* 
Aft.  10)  MOTIONS  AND   ORDERS   THEREON  §   681 

the  existence  of  an  oral  contract  without  which  plaintiff  could  not  recover. 
Fox  v.  Ziehme,  30  Okl.  673,  120  P.  285. 

in  action  on  written  contract  for  payment  of  money,  alleging  ownership 
of  certain  lease,  a  part  of  consideration  for  contract,  wherein  answer  al- 
leged failure  of  consideration  and  contained  a  general  denial,  judgment  for 
plaintiffs  on  the  pleadings  was  error.  Lesem  v.  Harris,  102  Kan.  222,  169 
P.  959. 

In  action  on  notes  and  to  foreclose  mortgage  securing  them,  where  defend- 
ant pleaded  payment  and  was  in  default  under  an  order  to  make  his  answer 
more  definite  and  certain,  sustaining  of  plaintiff's  motion  for  judgment  on 
the  pleadings  was  error,  in  view  of  Rev.  Laws  1910,  §  4745,  prescribing 
requisites  of  answer.  Moore  v.  Continental  Gin  Oo.  (Okl.)  173  P.  809. 

Where  answer  admitted  execution  of  note  but  denied  a  holding  in  due 
course  alleging. that  it  was  given  on  condition  and  negotiated  in  breach  there- 
of to  plaintiff,  who  took  with  knowledge,  it  was  error  to  render  judgment 
for  plaintiff  on  pleadings.  Dunkin  v.  Waurika  Nat.  Bank,  62  Okl.  175,  162 
P.  788. 

Where  the  answer  in  replevin  contained  several  defenses  in  addition  to  a 
general  denial,  a  motion  for  judgment  on  the  pleadings  was  properly  over- 
ruled. First  State  Bank  of  Mannsville  v.  Howell,  137  P.  657,  41  Okl.  216 ; 
Same  v.  Lawson,  137  P.  661,  41  Okl.  226. 

A  motion  by  plaintiff  for  judgment  on  the  pleadings  should  be  granted  only 
when  the  answer  does  not  deny,  or  state  a  defense  to,  a  material  allegation 
of  the  petition.  Shipman  v.  Porter,  48  Okl.  265,  149  P.  901 ;  Id.,  48  Okl.  284, 
149  P.  902. 

Where  material  allegations  of  plaintiff's  petition  are  denied  by  the  an- 
swer and  facts  pleaded  showing  the  same  to  be  untrue,  it  is  error  to  render 
judgment  for  plaintiff  on  the  pleadings.  Fenton  v.  Burleson,  124  P.  1087, 
33  Okl.  230. 

Plaintiff  sued  to  recover  an  amount  due  on  a  contract  to  clean  and  crush 
zinc  ore,  which  provided  that  plaintiff  should  sell  to  defendants  his  crushing 
plant  and  lease,  but  should  retain  the  mill  for  100  days  to  clean  ore  furnished 
by  defendants,  payment  to  be  made  for  such  work  when  the  ore  was  sold, 
provided  that  if  payment  was  not  made  as  agreed,  or  if  defendants  failed  to 
perform,  plaintiff  might  retain  any  sum  paid  and  withdraw  the  papers  from 
escrow  in  satisfaction  of  the  contract.  It  was  also  provided  that  plaintiff 
would  execute  bills  of  sale  and  an  assignment  of  a  lease  to  be  placed  in  es- 
crow, that  the  property  should  be  free  from  all  incumbrances,  and  the  peti- 
tion averred  performance  of  all  the  conditions.  The  answer  admitted  the 
contract,  the  milling  of  the  ore  and  alleged  performance,  and  further  alleged 
that  plaintiff  did  not  own  the  property  when  he  agreed  to  sell  it,  and'  that 
he  refused  to  place  in  escrow  the  bill  of  sale  and  assignment  of  the  lease, 
and  prayed  recovery  for  an  overpayment  to  plaintiff.  Held,  that  a  motion 
for  judgment  on  the  pleadings  by  plaintiff  should  have  been  overruled. 
Sparks  v.  McAllister,  103  P.  127,  80  Kan.  546. 

In  action  for  unliquidated  damages,  where  answer  admits  breach  of  con- 
dition of  bond  sued  on,  but  raises  issue  as  to  damages,  motion  of  plaintiff 
for  judgment  on  pleadings  was  improperly  sustained.  White  v.  Hocker,  58 
Okl.  38,  158  P.  440. 

(581) 


• 
§    681  PLEADINGS  (Ch.  11 

thing  fatal  to  defendant's  recovery,13  or  the  defenses  or  general 
denial  contained  in  the  answer  are  vitiated  by  admissions  con- 
tained therein;14  but  should  be  granted  where  the  petition  states 

is  Where  parties  stipulated  that  certain  statements  were  facts  in  the  case 
reserving  right  to  put  in  further  evidence,  plaintiff's  motion  for  judgment  on 
pleadings  and  findings  could  only  be  sustained  if  answer  stated  no  defense, 
or  if  agreed  facts  contained  something  fatal  to  defendant's  recovery.  Coburn 
v.  Simpson,  102  Kan.  234,  170  P.  383. 

For  purpose  of  plaintiff's  motion  for  judgment  on  pleadings  and  findings, 
allegations  of  answer,  unless  contradicted  by  stipulation  of  parties  as  to 
facts,  must  be  assumed  to  be  true,  though  referred  to  in  such  stipulation. 
Coburn  v.  Simpson,  102  Kan.  234,  170  P.  383. 

i*  When,  under  the  allegations  of  the  petition  and  the  admissions  in  the 
answer,  the  plaintiff  is  entitled  to  judgment  on  the  pleadings,  it  is  error  to 
deny  a  motion  made  for  such  purpose.  Long  v.  Shepard,  130  P.  131,  35  Okl. 
489. 

Where  defendant  bases  his  counterclaim  on  a  written  contract  for  commis- 
sions for  the  sale  of  goods,  but  the  contract  provides  for  a  sale  outright  to 
defendant,  and  no  commissions  are  provided  for  therein,  and  no  other  de- 
fense is  made,  overruling  of  the  motion  for  judgment  on  the  pleadings  is 
error.  Page  Woven  Wire  Fence  Co.  v.  Allen,  31  Okl.  155,  120  P.  638. 

Ordinarily  a  judgment  for  plaintiff  on  the  pleadings  cannot  be  ordered, 
where  issue  is  joined  upon  a  general  denial  and  other  defenses,  unless  the 
general  denial  is  overthrown  by  other  statements  in  the  answer.  Cobe  v. 
Coughlin  Hardware  Co.,  112  P.  115,  83  Kan.  522,  31  L.  R.  A.  (N.  S.)  1126. 

Where  defendant's  answer  contained  a  general  denial,  which,  however, 
was  qualified  by  other  allegations  admitting  all  facts  necessary  to  authorize 
a  judgment  in  plaintiff's  favor,  it  was  not  error  to  sustain  plaintiff's  motion 
for  judgment  on  the  pleadings.  Oliphant  v.  Crane  (Okl.)  172  P.  1073,  1074; 
Schuber  v.  McDuffee  (Okl.)  169  P.  642. 

An  answer  containing  a  general  denial  and  also  a  negative  pregnant  con- 
stituting admission  of  liability  by  defendant  is  subject  to  a  motion  for  judg- 
ment in  the  pleading.  Marshall  Mfg.  Co.  v.  Dickerson,  55  Okl.  188,  155  P. 
224. 

Where  the  admitted  facts  showed  that  the  organization  of  a  consolidated 
district  was  void,  the  court  properly  entered  judgment  on  the  pleadings, 
declaring  the  district  void  and  that  the  persons  acting  as  its  officers  were 
without  legal  rights,  and  decreeing  dissolution  of  the  district.  Smith  v.  State. 
47  Okl.  682,  149  P.  884. 

Where  the  petition  states  a  cause  of  action  and,  aside  from  the  general 
denial,  the  answer  admits  facts  entitling  plaintiff  to  recover,  judgment  on 
pleadings  is  proper.  Acton  v.  Culbertson,  38  Okl.  280,  132  P.  812. 

Where  the  essential  averments  of  a  petition  in  an  action  for  compensation 
as  a  real  estate  broker  are  a  contract  and  a  compliance  therewith,  and  the 
answer,  after  a  general  denial,  recognizes  the  procurement  of  a  purchaser 
and  an  acceptance  by  the  landowner  and  the  execution  of  a  valid  contract  of 
sale,  and  an  agreement  to  compensate  the  brokers  in  accordance  with  the 
contract  a  motion  by  plaintiffs  for  judgment  on  the  pleadings  was  properly 
sustained.  Yoder  v.  Randol,  S3  P.  537,  16  Okl.  308,  3  L.  R.  A.  (N.  S.)  576.  . 

(582) 


Aft.  10)   ,  MOTIONS  AND   ORDERS   THEREON  §   681 

a  cause  of  action  and  the  answer  fails  to  set  up  any  legal  defense,15 
or  cross-complaint.16 

A  motion  by  defendant  for  judgment  on  the  pleadings  should 

15  Baker  v.  Gaines  Eros.  Co.  (Okl.)  166  P.  159;  Mires  v.  Hogan  (Okl)  192 
P.  811. 

In  action  on  contract  for  sale  of  wheat,  held  that  plaintiff  was  entitled 
to  judgment  on  the  pleadings.  Cargill  Commission  Co.  v.  Mowery,  161  P. 
634,  99  Kan.  389,  judgment  modified  on  rehearing  162  P.  313,  99  Kan.  389. 

Plaintiff  sued  to  foreclose  a  mortgage  in  the  form  of  a  warranty  deed. 
The  answer  admitted  that  the  deed  was  executed  to  secure  an  extension  of 
a  note  and  mortgage  which  was  surrendered  to  defendants  and  to  enable  the 
mortgagor  to  avoid  the  payment  of  taxes.  There  was  no  plea  of  payment. 
Held  to  authorize  judgment  on  the  pleadings.  Johnson  v.  Harvey,  112  P.  108, 
83  Kan.  471. 

In  action  for  unpaid  installments  on  an  article  sold  under  contract  bind- 
ing buyer  to  execute  notes  as  evidence  of  indebtedness,  answer  not  pleading 
any  consideration  for  modification  of  contract  stated  no  defense,  and  au- 
thorized judgment  for  plaintiff  on  the  pleadings.  Miles  v.  Grosman  Co.  (Okl.) 
173  P.  808. 

Where  a  copy  of  a  negotiable  note  sued  on  and  attached  to  the  petition 
shows  an  undated  indorsement,  and  defendant  indorsee  does  not  deny  the 
indorsement  under  oath  or  plead  facts  showing  that  plaintiff  took  with 
knowledge  of  infirmities,  plaintiff  is  entitled  to  judgment  on  the  pleadings. 
Mangold  &  Glandt  Bank  v.  Utterback,  54  Okl.  655,  160  P.  713,  L.  R.  A.  1917B, 
364. 

Where  a  petition  alleges  defects  in  a  note  by  mutual  mistake,  and  the  an- 
swer admits  the  defects,  it  is  not  error  to  render  judgment  on  the  pleadings 
reforming  the  same.  De  Groat  v.  Focht,  131  P.  172,  37  Okl.  267. 

Where  the  pleadings  aver  that  a  citizen  of  the  Creek  Nation,  by  a  clause 
in  a  deed  executed  prior  to  Act  April  2G,  1906,  §  19,  and  before  the  restric- 
tions were  removed  from  the  allotment  of  the  grantor,  agreed  to  execute  a 
conveyance  when  his  restrictions  were  removed,  and  such  agreement  is  at- 
tached to  the  petition  as  a  part  thereof,  and  its  execution  is  not  denied,  and 
it  is  averred  that  after  removal  of  the  restrictions  the  grantor  executed  a 
deed  pursuant  to  the  stipulation,  the  latter  deed  is  void ;  and  judgment  to 
that  extent  should  be  entered  for  plaintiff  on  the  pleadings.  Long  v.  Shep- 
ard,  130  P.  131,  35  Okl.  489. 

In  replevin  to  recover  certain  chattels  by  virtue  of  a  mortgage  the  answer 
setting  up  only  a  partial  failure  of  consideration  judgment  was  properly  en- 
tered for  plaintiff.  Jones  v.  Bostick,  129  P.  718,  35  Okl.  363. 

In  an  action  on  a  note,  indorsed  before  maturity,  where  the  unverified  an- 
swer contains  a  general  denial,  a  denial  of  ownership,  and  an  allegation  of 
fraud,  but  sets  up  no  counterclaim,  plaintiff  is  entitled  to  judgment  on  the 
pleadings.  Rose  v.  Boyer,  141  P.  1006,  92  Kan.  892. 

is  Where  the  allegations  of  a  complaint  as  amended  are  admitted  by  the 
answer,  and  affirmative  matter  is  filed  as  an  answer  and  cross-complaint,  on 
a  motion  for  judgment  on  the  pleadings  ,the  same  should  be  rendered  for 
plaintiff,  if  the  allegations  of  the  cross-complaint  are  insufficient  to  sustain 
a  judgment  for  defendant.  Pugh  v.  Stigler,  97  P.  566,  21  Okl.  854. 

(583) 


§    681  PLEADINGS  (Ch.  11 

likewise  be  denied,  where  the  pleadings  raise  any  issue  of  fact,11 
which,  if  decided  in  plaintiffs  favor  would  entitle  him  to  any  legal 

IT  Where  an  answer  states  a  defense  to  plaintiff's  cause  of  action  and  plain- 
tiff files  a  verified  reply  putting  in  issue  the  existence  of  such  facts,  it  is  er- 
ror to  render  judgment  on  the  pleadings.  Goodman  v.  Broughman,  136  P. 
420,  39  Okl.  585. 

Allegations  in  pleadings  of  defendant  that  no  summons  was  served  in  the 
case  in  which  the  judgment  was  rendered,  though  insufficient  when  standing 
alone,  if  coupled  with  averments  of  fraud  and  collusion  extraneous  to  the 
issues  in  the  case  in  which  the  judgment  was  rendered,  were  sufficient  on  mo- 
tion by  defendants  for  judgment  on  the  pleadings.  Griffin  v.  Gulp  (Okl.)  174 
P.  495. 

In  an  action  on  a  note,  it  is  error  to  render  judgment  in  favor  of  defendant 
on.  the  pleadings  where  the  answer  fails  to  set  up  a  complete  defense.  McCor- 
mick  Harvesting  Machine  Co.  v.  Koch,  58  P.  626,  8  Okl.  374. 

Where  court,  on  motion  for  leave  to  amend  subcontractor's  statement  for 
lien  filed  as  an  exhibit  to  petition,  found  that  owner  was  known  by  name  to  be 
inserted  by  amendment,  judgment  on  pleadings  for  defendant  was  error. 
Badger  Lumber  Co.  v.  Collinson,  156  P.  724,  97  Kan.  791. 

In  ejectment,  plaintiff  claimed  to  be  the  owner  and  entitled  to  possession. 
Defendants,  in  their  cross-petition,  denied  plaintiff's  ownership  and  alleged 
that  a  third  person  was  the  owner  and  that  she  had  executed  an  oil  and  gas 
lease  to  defendants  under  which  they  were  in  possession.  Plaintiff  filed  a 
general  denial  to  the  cross-petition  and  reaffirmed  his  ownership.  Held,  that 
the  court  could  not  enter  judgment  for  defendants  on  the  pleadings;  it  being 
necessary  to  determine  the  issue  of  ownership  in  order  to  decide  the  rights 
of  the  parties.  McCready  v.  Dennis,  85  P.  531,  73  Kan.  778. 

Where  the  petition  states  a  cause  of  action  and  the  answer  alleges  no  new 
matter,  rendition  of  judgment  for  defendant  on  the  pleadings  is  improper. 
Leighton  v.  Crowell,  60  Okl.  219,  159  P.  1119. 

A  reply  denying  each  allegation  in  the  answer  inconsistent  with  the  alle- 
gations of  the  petition,  without  motion  to  make  it  more  definite  or  other  at- 
tack which  would  give  the  pleader  opportunity  to  amend,  is  sufficient  to  put 
in  issue  allegations  of  defensive  new  matter  in  the  answer,  and  judgment  on 
the  pleadings  based  thereon  is  properly  denied.  Stone  v.  Stone  (Okl.)  168  P. 
423. 

Reply  to  an  answer  setting  up  a  judgment  in  bar,  containing  a  general 
denial  of  matters  in  answer,  and  alleging  facts  intended  to  avoid  the  judgment, 
was  an  admission  of  existence  of  judgment,  and  where  affirmative  facts  were 
not  legally  sufficient  to  defeat  the  bar,  judgment  on  the  pleadings  was  proper. 
GQacken  v.  Andrew  (Okl.)  169  P.  1096. 

Where,  in  action  on  note,  the  answer  admitted  execution  by  several  defend- 
ants, and  oral  agreement  to  receive  a  fixed  sum  as  defendant's  liability  and 
payment  thereof  and  a  reply  denied  allegations  of  answer  as  "inconsistent" 
with  petition,  motion  by  defendant  for  judgment  on  the  pleadings  was  proper Iv 
denied  where  no  motion  to  make  the  reply  definite  and  certain  was  made. 
Lambert  v.  Sloop,  58  Okl.  289,  159  P.  482. 

In  action  for  rent  collected  by  plaintiff's  agent,  held,  on  the  petition,  answer 
and  cross-petition,  and  the  reply  alleged  to  be  improperly  verified,  it  was 

(584) 


Art.  10)  MOTIONS  AND  ORDERS   THEREON  §   681 

or  equitable  relief,18  as  where  the  petition  states  a  cause  of  action 
and  the  answer  does  not  constitute  a  complete  defense  thereto,1' 
though  no  reply  has  been  filed,20  but  should  be  granted  where  the 

not  error  to  refuse  to  render  judgment  for  defendant  upon  the  pleadings. 
Harn  v.  Boyd  (Okl.)  170  P.  505. 

Where  plaintiff  alleged  that  he  had  repaid  the  beneficiary  for  premiums  ad- 
vanced and  made  further  advancements  on  consideration  of  being  substituted 
as  beneficiary,  held,  that  it  was  error  to  render  judgment  for  a  claimant  to  tbe 
fund  adverse  to  plaintiff,  without  receiving  all  the  evidence  and  determining 
the  cause  on  equitable  considerations.  Brown  v.  Modern  Woodmen  of  Ameri- 
ca, 156  P.  767,  97  Kan.  665,  L.  R.  A.  1916E,  588. 

is  A  motion  for  a  judgment  for  defendant  on  the  pleadings  will  not  be  sus- 
tained where,  on  any  or  all  the  pleadings  in  the  case,  taken  together,  facts 
are  stated  which  show  that  plaintiff  is  entitled  to  some  legal  or  equitable  re- 
lief. Hawkins  v.  Overstreet,  54  P.  472,  7  Okl.  277. 

Plaintiff  filed  a  petition  alleging  title  to  land  through  a  railway  company, 
and  that  defendants  took  forcible  possession  under  a  pretended  homestead 
entry,  and  by  false  representations  secured  a  settlement  whereby  he  gave  then 
$400  in  cash  and  his  note  for  $600  to  obtain  a  relinquishment  of  their  title,  and 
asked  judgment  for  $400.  Defendants  filed  a  general  denial,  and  set  up  title 
to  the  land  under  their  homestead  entry.  Plaintiff  replied,  attacking  the  bona 
fides  of  the  homestead  entry.  Held,  that  a  judgment  for  defendants  on  the 
pleadings  was  erroneous,  since  the  plaintiff  had  a  right  to  present  to  the  jury 
the  question  of  the  good  faith  of  the  homestead  entry.  Tessendorf  v.  Lasater,. 
61  P.  328,  9  Kan.  App.  885. 

Since  a  plea  of  former  adjudication  presents  an  issue  of  fact,  a  party 
pleading  same  is  not  entitled  to  judgment  on  the  pleadings  by  reason  thereof- 
Johnson  v.  Johnson,  143  P.  670,  43  Okl.  582. 

19  Where  plaintiff's  petition  states  a  cause  of  action,  and  defendant's  answer 
does  not  constitute  a  complete  defense  thereto,  it  is  error  to  render  judgment 
for  defendant  on  the  pleadings.    Sweet  v.  Crane,  39  Okl.  248,  134  P.  1112. 

Where,  in  a  materialman's  action  to  enforce  a  lien,  the  petition  states  a 
cause  of  action  for  wrongful  conversion,  defendant's  motion  for  judgment  on 
the  pleadings  should  be  denied,  though  the  petition  does  not  show  plaintiff 
entitled  to  enforce  the  lien,  and  though  the  prayer  be  only  for  such  enforce- 
ment. C.  E.  Sharp  Lumber  Co.  v.  Kansas  Ice  Co.,  142  P.  1016,  42  Okl.  689. 

20  Where  petition  seeks  cancellation  of  conveyance  because  never  executed 
by  plaintiffs,  and  that  being  a  full-blood  conveyance  of  inherited  lands,  it 
was  never  approved  by  the  county  court,  and  answer  contained  general  denial 
and  allegations  of  execution  and  approval  of  conveyance,  judgment  on  the 
pleadings  should  not  be  entered  for  failure  to  reply.    Robert  v.  Mullen,  61  Okl. 
40,  160  P.  83. 

An  allegation  in  the  answer  that  plaintiff,  assignee  of  the  note  sued  on,  paid 
nothing  for  the  note,  held  not  to  state  a  defense,  and  not  to  call  for  a  reply 
so  as  to  permit  judgment  on  the  pleadings  for  want  of  reply.  Owens  v. 
Farmers'  &  Merchants'  Bank  of  Duke,  54  Okl.  387,  154  P.  355. 

Where,  if  claim  of  plaintiff  was  true,  defendant  was  not  entitled  to  judg- 
ment on  its  cross-petition,  defendant's  motion  for  judgment  on  the  pleadings 
after  all  of  the  evidence  had  been  offered  held  properly  overruled,  though^ 
plaintiff  filed  no  reply.  Hoover  v.  Brookshire,  122  P.  171,  32  Okl.  298. 

(585) 


§    681  PLEADINGS  (Ch.  11 

pleadings  do  not  present  any  issue  of  fact  which,  if  determined  in 
plaintiff's  favor,  would  warrant  recovery  by  him,21  particularly  if 
plaintiff  does  not  request  leave  to  amend.22 

21  In  action  in  replevin,  consolidated  with  action  by  defendant  therein  for 
injunction,  setting  up  right  to  replevied  property  under  award,  held,  that 
trial  court  did  not  err  in  sustaining  motion  of  defendant  in  first  action,  plain- 
tiff in  second  action,  for  judgment  on  the  pleadings.     Scrivner  v.  McClellancl 
(Okl.)  168  P.  415. 

Where  cattle  were  shipped  under  a  written  contract  alleged  in  the  answer 
providing  that  a  failure  to  give  notice  of  claims  before  removal  of  the  cattle 
at  destination  and  within  one  day  after  delivery  should  bar  the  shipper's  right 
to  recover  on  claims  with  reference  thereto,  and  neither  the  petition  nor 
the  reply  alleged  a  compliance  with  such  condition  nor  waiver  thereof,  and 
no  facts  were  pleaded  showing  an  actual  or  substantial  compliance  with  the 
provision  or  excuse  for  failure  to  do  so,  defendant  was  entitled  to  judgment 
on  the  pleadings.  St.  Louis  &  S.  F.  R.  Co.  v.  Cake,  105  P.  322,  25  Okl.  227. 

A  petition  to  foreclose  a  subcontractor's  lien  under  the  mechanic's  lien  law 
failed  to  allege  that  notice  of  the  filing  of  the  lien  had  been  served  on  the 
owner.  More  than  a  year  after  the  lien  was  filed  the  petition  was  amended  to 
allege  service  of  notice.  A  motion  for  judgment  on  the  pleadings  was  denied, 
and  an  objection  to  evidence  under  the  amended  pleading  overruled.  Held  er- 
ror. Powers  v.  Badger  Lumber  Co.,  90  P.  254,  75  Kan.  687. 

Where  the  reply  to  an  answer  setting  up  a  discharge  in  bankruptcy,  in  ad- 
dition to  a  general  denial,  alleged  particular  but  insufficient  facts  to  avoid  the 
effect  of  the  discharge,  held,  that  a  judgment  on  the  pleadings  was  proper, 
notwithstanding  the  general  denial.  Chambers  v.  Kirk,  139  P.  986,  41  Okl. 
696. 

Where  a  petition  in  an  action  on  the  bond  of  a  justice  of  the  peace  alleges 
the  collection  of  moneys  by  the  principal  as  justice,  and  the  answer  admits 
the  execution  of  the  bond,  and  alleges  that  the  moneys  were  collected  under  a 
contract  between  plaintiff  and  the  justice,  so  pleaded  as  to  require  a  verified 
denial,  and  the  contract  shows  on  its  face  that  it  is  illegal  and  void  as  against 
public  policy,  and  the  reply  filed  is  an  unverified  general  denial,  the  legal  ef- 
fect of  the  contract  is  admitted,  and  defendant  is  entitled  to  judgment  on  the 
pleadings.  Limerick  v.  Barrett,  43  P.  853,  3  Kan.  App.  573. 

22  Where  an  action  is  brought  against  a  railroad  for  injury  to  horses  ship- 
ped, and  the  petition  alleges  that  they  were  shipped  under  a  written  contract, 
evidenced  by  bill  of  lading  attached  to  the  petition  and  made  a  part  thereof, 
and  said  bill  of  lading  provides  for  notice  within  30  hours  of  any  damage  in 
transit,  and  there  is  written  across  the  face  of  the  bill  of  lading  "released  per 
contract,"  and  this  contract  is  referred  to  in  the  answer  of  defendant  and  at- 
tached as  an  exhibit,  and  contains  provision  that  as  a  condition  precedent 
to  recovery  notice  shall  be  given  in  writing  to  the  railroad  company  or  its  of- 
ficers before  the  stock  is  removed  from  the  place  of  shipment,  and  it  is  al- 
leged that  this  provision  of  the  contract  has  not  been  complied  with,  and 
plaintiff  files  a  reply  setting  up  a  general  denial,  which  is  unverified,  the 
written  contract  is  admitted,  and  where  neither  the  petition  nor  the  reply  al- 
leges a  compliance  with  conditions  of  the  bill  of  lading  or  contract,  nor  any 
allegation  of  waiver,  and  no  facts  are  set  up  in  the  pleadings  as  to  compliance, 

(586) 


Art.  10)  MOTIONS  AND   ORDERS   THEREON  §    681 

Where  the  execution  of  a  written  contract  is  alleged  and  relied 
on  in  a  petition,  counterclaim,  or  set-off,  a  verified  denial  thereof 
must  be  contained  in  the  answer  or  reply ;  otherwise,  the  allega- 
tion as  to  the  execution  of  the  instrument  will  be  taken  as  true  at 
the  hearing  on  a  motion  for  judgment  on  the  pleadings.23  The 
same  is  true  where  the  plaintiff  or  defendant,  as  the  case  may  be, 
relies  on  a  verified  account  to  which  no  verified  denial  is  filed,14 
providing  the  correctness  of  the  account  is  alleged  in  the  body  of 
the  pleading.25 

Where  plaintiff  alleged  a  shipment  under  a  definite  verbal  con- 

a  motion  for  judgment  for  defendant  on  the  pleadings  should  be  sustained, 
where  there  is  no  request  by  plaintiff  to  amend.  St.  Louis  &  S.  F.  R.  Co.  v. 
Phillips,  87  P.  470,  17  Okl.  264. 

23  Where,  in  an  action  on  a  note,  the  answer  denying  its  execution  i«> 
filed  unverified,  but  was  sworn  to  by  defendant  before  the  clerk  of  the  court 
on  the  day  the  case  is  called  for  trial  without  leave  of  court  first  obtained, 
while  the  answer  remains  on  file,  it  is  error  to  render  judgment  against  de- 
fendant on  the  pleadings.    Manning  v.  Stroud  State  Bank,  110  P.  650,  26  Okl. 
6^5. 

In  action  on  note  wherein  answer  is  not  verified  and  does  not  allege  any  set- 
off  or  counterclaim  or  legal  defense,  judgment  on  the  pleadings  may  be  en- 
tered for  plaintiff.  Kerr  v.  McKinney  (Okl.)  170  P.  685. 

In  action  to  enforce  policy  as  it  was  alleged  to  have  been  before  being 
wrongfully  changed,  where  defendant  alleged  execution  as  shown  by  copies  at- 
tached and  reply  was  not  verified,  defendant  was  entitled  to  judgment  on 
pleadings,  under  Code  Civ.  Proc.  Kan.  §  110  (Gen.  St.  Kan.  1909,  §  5703). 
Hayes  v.  Mutual  Benefit  Life  Ins.  Co.,  158  P.  1107,  98  Kan.  584. 

Where  defendants  pleaded  the  execution  of  a  note  and  mortgage,  and  asked 
judgment  thereon  and  foreclosure,  and  plaintiff  replied  by  an  unverified  de- 
nial, judgment  should  have  been  rendered  for  defendants  on  the  note  and 
mortgage.  Brewer  v.  Martin,  138  P.  166,  40  Okl.  350. 

24  An  action  was  brought  upon  an  account,  the  correctness  of  which  was 
verified   by    affidavit.      Defendants    filed   a    verified    answer,    conceding    the 
account,  but  stating  that  they  purchased  drafts  from  a  banking  firm  of  which 
plaintiff  was. a  partner,  and  that  the  drafts  were  dishonored,  and  they  were 
compelled  to  redeem  the  same.    The  amount  of  the  indebtedness  thus  arising 
exceeded  plaintiff's  claim,  and  defendants  demanded  judgment  for  the  differ- 
ence.   Plaintiff  replied  with  a  verified  denial  of  the  allegations  of  the  answer. 
Both  parties  declined  to  offer  evidence,  and  submitted  the  case  upon  the 
pleadings,  and  judgment  was  rendered  for  plaintiff  for  the  amount  of  his  ac- 
count.   Held  that,  though  the  counterclaim  was  good,  the  judgment  was  prop- 
er, since  it  was  denied  under  oath  and  no  proof  was  offered.    Hatfield  v.  Far- 
num,  29  P.  395,  48  Kan.  126. 

25  Where  bill  of  particulars  does  not  allege  correctness  of  the  account  sued 
on,  and  is  unverified,  plaintiff  is  not  entitled  to  judgment  on  the  pleadings, 
though  a  verified  statement  of  account  be  attached  to  the  bill.    Barnes  v.  Uni- 
versal Tire  Protector  Co.,  63  Okl.  292,  1C5  P.  176. 

(587) 


§    681  PLEADINGS  (Ch.    11 

tract,  and  defendant  answered  by  general  denial  and  by  pleading  a 
written  contract  which  it  alleged  was  the  only  one  between  the 
parties,  the  overruling  of  defendant's  motion  for  judgment  on  the 
pleadings,  because  the  reply  containing  a  general  denial  of  new 
matter  was  unverified,  was  not  error.26 

Where  defendant  in  his  answer,  in  addition  to  the  general  de- 
nial, pleads  facts  warranting  affirmative  relief,  and  after  filing  such 
answer,  but  before  reply,  plaintiff,  by  leave  of  court,  dismisses,  de- 
fendant will  be  allowed  to  pursue  his  remedy  for  affirmative  relief 
as  set  up  in  his  answer,  and  on  motion  for  judgment  on  the  plead- 
ings on  the  ground  that  the  allegations  for  affirmative  relief  are 
undenied,  the  court  should  either  sustain  the  motion  or  rule  plain- 
tiff to  reply  to  the  affirmative  part  of  the  answer,  so  that  the  issue 
may  be  raised  and  tried  by  the  court.27 

A  reply,  denying  the  allegations  of  the  answer  inconsistent  with 
the  petition,  denies  all  defenses  to  the  cause  of  action  alleged  in 
the  petition,  so  as  not  to  entitle  defendant  to  judgment  on  the 
pleadings.28 

Where  the  answer  raises  an  issue  of  fact  and  both  parties  move 
for  judgment  on  the  pleadings,  it  is  error  to  grant  plaintiff's  mo- 
tion.29 Defendant,  by  moving  for  judgment  on  the  pleadings, 
does  not  waive  his  right  to  have  an  issue  of  fact  set  out  in  his  an- 
swer, tried  by  the  court  or  by  a  jury.30 

Motions  for  judgment  on  the  pleadings  cannot  be  sustained,  un- 
less the  court  can  determine  on  the  pleadings  the  rights  of  the  par- 
ties and  pronounce  judgment  final  between  them.31 

Where  a  question  of  fact  is  involved,  it  is  proper  for  the  court  to 
set  aside  its  judgment  on  the  pleadings.32 

26  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Moore,  129  P.  24,  36  Okl.  433;  Atchison,  T. 
&  S.  F.  Ry.  Co.  v.  Robinson,  129  P.  20,  36  Okl.  435. 

27  Brown  v.  Massey,  92  P.  246,  19  Okl.  482. 

as  McKnight  v.  Strastmrger  Bldg.  Co.,  150  P.  542,  96  Kan.  118. 
29Atwood  v.  Massey,  54  Okl.  178,  153  P.  629. 
so  Id. 

si  White  v.  Hocker,  58  Okl.  38,  158  P.  440. 

32  Chamberlain  Metal  Weather  Strip  Co.  v.  Bank  of  Pleasanton,  160  P.  1138, 
98  Kan.  611. 

(588) 


Art.  10)  MOTIONS   AND   ORDERS   THEREON  §§    682-684 

§  682.    Departure 

A  departure  in  the  reply  from  the  petition  cannot  be  taken  ad- 
vantage of  by  motion  for  judgment  on  the  pleadings,  but  can  only 
be  reached  by  a  motion  to  strike.33 

§  683.     Judgment  against  verdict 

While  judgment  may  be  given  for  a  party  on  the  pleadings  even 
after  verdict  against  him,  his  right  thereto  should  clearly  appear 
from  the  pleadings,  and  where  the  pleadings  present  material  is- 
sues of  fact  not  determinable  without  evidence  aliunde  a  motion 
for  judgment  on  the  pleadings  is  properly  overruled.3* 

§  684.     Motion  to  strike  from  files — Form 

"Motions  to  strike  pleadings  and  papers  from  the  files  may  be 
made  with  or  without  notice,  as  the  court  or  judge  may  direct."  85 

Like  a  demurrer,  a  motion  to  strike  a  pleading  admits  the  truth 
of  all  facts  well  pleaded  for  .the  purposes  of  the  motion,  except 
where  the  motion  is  to  strike  the  pleading  as  a  sham.36  While  in 
some  cases  the  granting  or  refusing  of  a  motion  to  strike  rests  in 
the  sound  discretion  of  the  trial  'court,  the  court  must  not  act  ar- 
bitrarily. The  discretion  referred  to  contemplates  a  legal  discre- 
tion, a  discretion  to  be  exercised  in  discerning  the  course  prescrib- 
ed by  law  according  to  legal  principles. 

Motions  to  strike  pleadings  for  any  cause  are  not  to  be  encour- 
aged, and  will  be  granted  only  in  a  clear  case.  A  motion  to  strike 
a  pleading  as  an  entirety,  or  several  separate  paragraphs  of  a 
pleading,  cannot  be  sustained,  where  one  or  more  of  the  paragraphs 
are  sufficient.37 

Where  objections  to  a  pleading  are  based  on  its  insufficiency  in 

83  St.  Paul  Fire  &  Marine  Ins.  Co.  v.  Mountain  Park  Stock  Farm  Co.,  99 
P.  647,  23  Okl.  79;  Wilson  v.  Jones  (Okl.)  168  P.  194. 

s*  Curtis  &  Gartside  Co.  v.  Pigg,  39  Okl.  31,  134  P.  1125;  Rev.  Laws  1910,  § 
5140. 

35  Rev.  Laws  1910,  §  5315. 

3*  Turk  v.  Page  (Okl.)  174  P.  1081. 

37  Turk  v.  Page  (Okl.)  174  P.  10S1. 

Considered  as  a  permissible  pleading,  it  was  error  to  strike  from  an  an- 
swer eight  separate  paragraphs  thereof,  where  one  or  more  of  such  para- 
graphs of  the  defenses  interposed  was  sufficient.  Turk  v.  Page  (Okl.)  174  P. 
1081. 

(589) 


§§  684-686  PLEADINGS  (Ch.  11 

matters  of  substance,  they  should  be  taken  by  demurrer,  and  not 
by  motion  to  strike.38 


MOTION  TO   STRIKE  ANSWER  PROM 

(Caption.) 

Comes  now  the  plaintiff  and  moves  the  court  to  strike  from  the 
files  herein  the  answer  filed  by  the  defendant,  upon  the  ground  that 
said  answer  is  not  verified  (or  is  defectively  verified,  in  this,  speci- 
fying the  defect). 

-  ,  Attorney  for  Plaintiff. 
§  685.    -    Affirmative  pleading 

A  motion  to  strike  out  an  affirmative  pleading  is  not  an  appro- 
priate method  of  testing  its  sufficiency  ;  89  the  proper  remedy  be- 
ing by  demurrer,*0  or  by  objection  to  the  introduction  of  any  evi- 
dence under  it.41 

A  motion  to  strike  a  petition  from  the  files  for  impertinent,  im- 
material, libelous,  and  scandalous  matter,  should  not  be  sustained, 
where  the  petition  contains  facts  which,  if  true,  would  constitute  a 
valid  basis  for  judgment.42 

§  686    -    Defensive  pleadings 

Where  the  answer  fails  to  state  a  defense  to  the  action  or  any 
part  thereof,  a  motion  to  strike  the  answer  should  be  sustained.43 

Where  the  defendant's  answer  and  cross-petition  alleges  that 
an  account  was  a  joint  liability  against  the  plaintiff  and  third  par- 
ty, plaintiff's  agent,  and  its  correctness  is  denied  by  an  affidavit  of 
the  agent  in  the  reply,  a  refusal  to  strike  the  reply  for  want  of 

ss  Hailey  v.  Bowman,  137  P.  722,  41  Okl.  294. 

88  Grand  Lodge  I.  O.  O.  F.  of  State  of  Kansas  v.  Troutman,  84  P.  567,  73 
Kan.  35. 

40  Where  objections  to  a  pleading  are  based  on  its  insufficiency  in  matters  of 
substance,  they  should  be  taken  by  demurrer,  and  not  by  motion  to  strike. 
Hailey  v.  Bowman,  137  P.  722,  41  Okl.  294. 

It  is  improper  to  strike  out  an  answer  and  cross-petition  because  the  facts 
stated  therein  are  insufficient  to  establish  a  cause  for  relief,  the  proper  prac- 
tice being  to  demur.  Armstead  v.  Neptune,  44  P.  998,  56  Kan.  750. 

41  Objection  to  a  petition  on  the  ground  that  it  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action  can  be  made  only  by  demurrer  or  ob- 
jection to  evidence,  and  cannot  be  raised  by  motion  to  strike  the  petition  from 
the  files.    First  Nat.  Bank  v.  Cochran,  87  P.  855,  17  Okl.  538. 

42  Butler  v.  Butler,  125  P.  1127,  34  Okl.  392. 

48  National  Life  Ins.  Co.  v.  Hale,  54  Okl.  600,  154  P.  536,  L.  R.  A.  1916E,  '<21. 

(590) 


Art.  10)  MOTIONS   AND   ORDERS    THEREON  §§    686~689 

proper  verification  is  not  error,  particularly  where  the  purported 
account  is  not  in  fact  an  account;  it  not  constituting  a  proper 
counterclaim  or  set-off.44  Where  the  defendant  has  filed  an  an- 
swer, good  in  form,  to  which  a  reply  has  been  filed,  he  cannot  be 
compelled,  to  avoid  having  the  answer  stricken  as  a  sham,  to  give 
an  affidavit  or  deposition  before  a  notary  public,  to  be  used  on  the 
hearing  of  a  motion  to  strike  from  the  files  the  answer  as  false  and 
a  sham.45 

If  the  amended  reply  is  filed,  and  the  defendant  is  not  prepared 
to  proceed  with  the  trial,  his  remedy  is  to  apply  for  a  continuance, 
not  to  move  to  strike  the  amended  reply.46  • 

§  687.    Demurrer 

The  striking  of  the  demurrer  of  one  defendant  from  the  files,  in- 
stead of  permitting  it  to  be  amended,  was  not  an  abuse  of  discre- 
tion, where  such  defendant,  being  in  default,  obtained  leave  to  plead, 
and  was  represented  by  the  same  attorney  as  his  codefendant,  who 
had  filed  a  demurrer  on  the  same  grounds,  -which  demurrer  had 
been  previously  overruled.47 

§  688.    Departure 

An  objection  to  a  pleading  on  the  ground  of  departure  must  be 
raised  by  motion  to  strike,48  not  by  motion  for  judgment  on  the 
pleadings.49 

§  689.    Limitations 

The  question  whether  an  action  was  barred  by  limitations  can- 
not be  raised  by  a  motion  to  strike  the  petition  from  the  files.50 


4*  Ham  v.  Boyd  (Okl.)  170  P.  505. 

45  in  re  Bartholomew,  21  P.  275,  41  Kan.  273. 

40  Ely  v.  Pool,  60  Okl.  77,  159  P.  511. 

47  Burr  v.  Honeywell,  51  P.  235,  6  Kan.  App.  783. 

48  Wilson  v.  Jones  (Okl.)  168  P.  194;  Merchants'  &  Planters'  Ins.  Co.  v. 
Marsh,  125  P.  HOC,  34  Okl.  453,  42  L.  R.  A.  (N.  S.)  996. 

Departure  held  ground  for  striking  out  a  reply.  Springfield  Fire  &  Marine 
Ins.  Co.  v.  Halsey,  126  P.  237,  34  Okl.  383. 

A  refusal  to  strike  from  the  files  an  amended  petition,  as  a  departure  from 
the  original  petition,  is  not  ground  of  reversal  on  appeal  where  no  objection- 
able departure  appears,  nor  any  abuse  of  its  discretion  by  the  trial  court.  Le- 
roy  &  C.  V.  A.  L.  R.  Co.  v.  Small,  26  P.  695,  46  Kan.  300. 

49  Wilson  v.  Jones  (Okl.)  154  P.  663;  Stuart  v.  Grayson  (Okl.)  162  P.  956. 
so  Baldwin  v.  Ohio  Tp.,  65  P.  700,  63  Kan.  885. 

(591) 


§§  690-692  PLEADINGS  (Ch.  11 

§  690.     Amended  pleading 

A  motion  to  strike  out  a  pleading  may  be  used  to  eliminate  an 
amended  pleading  which  is  a  mere  repetition  of  one  held  defective 
on  demurrer;  "but  where  an  amended  petition  sets  forth  addition- 
al facts  and  a  fuller  statement  of  those  alleged  in  the  original  peti- 
tion, and  made  in  the  bona  fide  effort  to  state  a  cause  of  action,  a 
motion  to  strike  out  because  of  sameness  to  the  original  petition 
will  not  lie.51 

Where  an  amended  answer  measurably  complies,  in  particulars 
required",  with  an  order  that  the  original  be  made  more  definite  and 
certain,  it  is  error  to  sustain  a  motion  to  strike  the  amended  an- 
swer from  the  files,  though  it  may  not  state  facts  sufficient  to  con- 
stitute a  defense;  but  a  demurrer,  so  that  an  amendment  can  be 
allowed,  is  the  proper  pleading.52 

However,  where  parties  obtain  leave  to  amend  to  make  it  more 
definite  and  certain  and  the  amendment  fails  to  do  so,  the  amend- 
ment is  properly  stricken.53 

The  striking  of  an  amended  pleading  leaves  the  original  plead- 
ing standing,  as  though  no  amendment  had  been  filed.54 

§  691.    Failure  to  amend 

Where  an  answer  on  file  states  a  defense  and  defendant  is  in  de- 
fault of  an  order  to  make  his  answer  more  definite  and  certain,  the 
proper  procedure  is  by  motion  to  strike  the  answer.55 

§  692.     Motion  to  strike  from  pleading — Form 

"If  redundant  or  irrelevant  matter  be  inserted  in  any  pleading,  it 
may  be  stricken  out,  on  motion  of  the  party  prejudiced  thereby."  56 

si  Grand  Lodge  I.  O.  O.  F.  v.  Troutman,  84  P.  567,  73  Kan.  35. 

Where  the  original  petition  was  sufficient,  there  was  no  error  in  refusing  to 
strike  from  the  files  an  amended  petition,  which  in  no  way  changed  the  cause 
of  action.  Chicago.  K.  &  W.  Ry.  Co.  v.  Totten,  42  P.  269,  1  Kan.  App.  558. 

Where  the  original  and  two  amended  petitions  prayed  for  equitable  relief, 
it  was  error  to  sustain  a  motion  to  strike  the  last  amended  petition  from  the 
files,  as  changing  the  action  from  one  in  tort  to  an  action  in  equity.  Baldwin  v. 
Ohio  Tp.,  65  P.  700,  63  Kan.  885. 

52  McNinch  v.  Northwest  Thresher  Co.,  100  P.  524,  23  Okl.  386,  138  Am.  St. 
Rep.  803. 

53  Long  v.  McFarlin,  58  Okl.  321,  159  P.  653. 

54  St.  Francis  Land  oc  Abstract  Co.  v.  Rathburn,  114  P.  862,  84  Kan.  664. 

55  Moore  v.  Continental  Grn  Co.  (Okl.)  173  P.  809. 
so  Rev.  Laws  1910,  §  4770. 

In  action  by  creditor,  after  alleged  rescission  of  settlement  by  debtor's  con- 

(592) 


Art.  10)  MOTIONS  AND   ORDERS   THEREON  §    692 

It  is  proper  to  strike  from  a  petition  on  motion  mere  surplus- 
age,57 irrelevant58  and  immaterial  allegations  calculated  to  preju- 
dice defendant,59  matter  in  avoidance  of  an  anticipated  defense,60 
copies,  the  originals  of  which  are  not  signed  by  the  defendant  or 
his  agent,61  allegations  specially  pleading  punitive  damages  in  a 
sum  certain,  where  it  is  not  required  that  such  damages  be  spe- 
cially pleaded.62  Likewise  redundant  and  irrelevant  matter  may 
be  stricken  from  an  answer.63 

structive  delivery  of  goods,  debtor's  claim  for  damages  for  malicious  prosecu- 
tion of  former  civil  action  held  properly  stricken;  there  being  no  basis  for 
a/  claim  that  the  action  was  brought  maliciously  and  without  probable  cause. 
United  States  Tire  Co.  v.  Kirk,  102  Kan.  418,  170  P.  811. 

57  In  petition  to  cancel  deeds  oy  full-blood  Indians  and  quiet  title  on  ground 
that  county  court  was  without  jurisdiction  to  approve  the  deeds,  and  that 
they  were  void  and  not  supported  by  consideration,  allegations  that  considera- 
tion named  was  never  paid  held  surplusage  and  properly  stricken.  Long  v. 
McFarlin,  58  Okl.  321,  159  P.  653. 

Where  facts  in  a  petition  are  redundant  and  surplusage  and  could  be  proven 
without  being  pleaded,  it  is  within  the  discretion  of  the  court  to  strike  out  rr 
retain  them.  Sramek  v.  Sklenar,  85  P.  566,  73  Kan.  450. 

ss  it  is  not  error,  on  motion  of  defendant,  to  strike  irrelevant  matter  from 
plaintiffs  petition.  Grand  Lodge  K.  P.  of  North  America,  etc.,  v.  Farmers'  & 
Merchants'  Bank  of  Boley,  64  Okl.  225,  166  P.  1080. 

59  Roe  v.  Board  of  Com'rs  of  Elk  County,  40  P.  1082,  1  Kan.  App.  219. 

When  a  petition  contains  redundant  or  irrelevant  allegations,  calculated  to 
prejudice  defendant  on  the  trial,  the  same  should  be  stricken  out  on  motion. 
Roe  v.  Board  of  Com'rs  oij  Elk  County,  40  P.  1082,  1  Kan.  App.  219. 

In  action  for  partition  of  land  in  this  state,  where  amended  petition  made 
stranger  to  title  a  party,  alleging  that  he  claimed  title  to  plaintiff's  land  in  an- 
other state  and  wrongfully  excluded  plaintiff  from  possession,  motion  by  an 
other  defendant  claiming  interest  in  Kansas  lands  to  strike  averments  as  t<> 
new  defendant,  etc.,  was  properly  sustained.  Caldwell  v.  Newton,  163  P. 
163,  99  Kan.  846. 

eo  When  a  complaint  sets  up  matter  in  avoidance  of  a  plea  of  res  judicata 
which  plaintiff  anticipates  may  be  made  by  defendant,  that  matter  is  properly 
stricken  out.  Frick  Co.  v.  Carson,  43  P.  820,  3  Kan.  App.  478. 

61  Certain  copies  of  letters  held  properly  stricken  from  the  petition,  in  an 
action  for  services,  where  they  were  not  signed  by  defendant,   or   by  any 
person  authorized  by  him  to  sign  them.    Van  Doren  v.  Altoona  Portland  Ce- 
ment Co.,  141  P.  560,  92  Kan.  470. 

62  Where  in  the  ad  damnum  damages  are  claimed  generally  in  a  sum  cer- 
tain, and  exemplary  damages  as  such  are  claimed  also  in  a  sum  certain,  motion 
to  strike  the  latter  item  was  properly  sustained;  it  being  unnecessary  that 
punitive  damages  should  be  specially  pleaded.    Acton  v.  Culbertson,  38  Okl. 
280,  132  P.  812. 

es  An  order  striking  out  parts  of  an  answer,  but  leaving  sufficient  to  pro- 
sent  all  proper  defenses  and  counterclaims,  held  not  error.  Stroupe  v.  Hewitt, 
133  P.  562,  90  Kan.  200. 

In  action  for  damages  for  conversion  of  goods  by  bailee,  striking  from  his 

HON.PL.&  PKAC.— 38  (593) 


§   692  PLEADINGS  (Ch.  11 

It  is  error,  however,  to  strike  out  certain  portions  of  a  petition 
unless  such  parts  are  statements  of  matter  foreign  to  the  cause, 
and  raise  no  issue  proper  to  be  raised  in  the  case,  and  unless  such 
motion  is  made  by  the  party  prejudiced.84 

It  is  not  error  to  refuse  to  strike  out  the  statement  of  a  legal  con- 
clusion from  a  pleading,  where  the  facts  on  which  such  statement 
rests  are  fully  set  out.65 

In  an  action  for  breach  of  marriage  promise,  it  is  not  error  to 
overrule  a  motion  to  strike  out  of  the  petition  evidential  facts  form- 
ing no  part  of  the  cause  of  action,  but  which  are  pleaded  as  aggra- 
vation of  damages.66 

An  allegation  in  a  reply  at  variance  with  the  petition  should  be 
stricken  on  motion.67 

MOTION  TO  STRIKE)  PORTION  OF  PLEADING 

(Caption.) 

Comes  now  the  above  named  defendant,  C.  D.,  and  moves  the 
court  to  strike  from  the  petition  of  the  plaintiff  heretofore  filed 
herein  the  following  statements  and  allegations,  to  wit : 

1.  That  portion  of  the  and  lines  of  paragraph 

numbered of  said  petition,  reading  as  follows:     (Set  forth 

portion  of  petition  concerned)  for  the  reason  that  the  same  is  ir- 
relevant and  immaterial  and  a  legal  conclusion. 

2.  That  portion  of  the  last line  of  paragraph  numbered 

of  said  petition,  reading  as  follows:     (Setting  same  forth) 

answer  statements  amounting  to  reasons  for  conversion  was  not  error,  where 
the  facts  had  no  bearing  on  question  of  liability.  United  States  Tire  Co.  v. 
Kirk,  102  Kan.  418,  170  P.  811. 

e*  Berry  v.  Geiser  Mfg.  Co.,  85  P.  699,  15  Okl.  364. 

It  is  not  error  for  the  court  to  overrule  a  motion  to  strike  out  parts  of  pe- 
tition not  statements  of  redundant  or  irrelevant  matter,  but  germane  to  the 
issues.  Crump  v.  Lanham  (Okl.)  168  P.  43. 

In  action  to  recover  twice  the  amount  of  usurious  interest  paid,  overruling 
motion  to  strike  certain  parts  of  petition  relating  only  to  renewal  notes  of 
original  notes,  was  not  error,  where  action  was  brought  within  two  years 
from  maturity  of  last  renewal  note.  Citizens'  State  Bank  of  Ft.  Gibson  v. 
Strahan,  63  Okl.  288,  165  P.  189,  modifying  judgment  on  rehearing  59  Okl. 
215,  158  P.  378. 

SB  State  Bank  of  Stockton  v.  Showers,  70  P.  332,  65  Kan.  431. 

616  Sramek  v.  Sklenar,  85  P.  566,  73  Kan.  450. 

67  Gage  v.  Connecticut  Fire  Ins.  Co.  of  Hartford,  Conn.,  127  P.  407,  34  Okl. 
744. 

(594) 


Art.  10)  MOTIONS  AND  ORDERS   THEREON  §§   692~694 

for  the  reason  that  the  same  is  irrelevant,  immaterial,  and  sur- 
plusage. 

3.  That  portion  of  paragraph  numbered  -  -  of  said  petition 
reading  as  follows:  (Setting  same  forth)  for  the  reason  that  the 
same  is  irrelevant,  immaterial,  a  repetition^  and  surplusage.  , 

,  Attorney  for  Defendant. 

§  693.    Motion  to  strike  parties — Form 

Where  plaintiff  has  joined  unnecessary  parties  with  him,  the 
proper  practice  is  a  motion  to  strike  such  parties  from  the  petition, 
rather  than  a  motion  to  strike  the  petition  from  the  files.68 

MOTION  TO  STRIKE  PARTIES 

(Caption.) 

Comes  now  the  above  named  defendant,  C.  D.,  and  moves  the 
court  to  strike  the  name  of  the  plaintiff,  E.  F.,  from  the  petition 
herein,  and  from  this  action,  for  the  reason  that  said  plaintiff  has 
no  interest  in  this  action  and  is  an  unnecessary  and  improper  party 
plaintiff.  X.  Y.,  Attorney  for  Defendant. 

§  694.     Motion  to  make  more  definite  and  certain 

"When  the  allegations  of  a  pleading  are  so  indefinite  and  un- 
certain that  the  precise  nature  of  the  charge  or  defense  is  not  ap- 
parent, the  court  may  require  the  pleading  to  be  made  definite  and 
certain  by  amendment."  69 

Under  this  statute,  it  is  only  where  the  allegations  of  a  pleading 
are  so  indefinite  and  uncertain  that  the  precise  nature  of  the  action 
or  defense  is  not  apparent  that  the  court  may  require  a  party  to 
make  his  petition  or  answer  more  definite  and  certain.70 

es  Maddin  v.  Robertson,  38  Okl.  526,  133  P.  1128. 

es  Rev.  Laws  1910,  §  4770. 

70  Moore  v.  Continental  Gin  Co.  (Okl.)  173  P.  809. 

It  is  not  error  to  overrule  a  motion  to  make  a  pleading  more  definite  where 
it  is  sufficient  to  inform  the  opposing  party  of  the  precise  charge  or  defense. 
Eisminger  v.  Beman,  124  P.  289,  32  Okl.  818. 

Where  the  answer  set  up  a  large  number  of  items  which  defendant  alleged 
were  owing  him  by  plaintiff  and  alleged  that  plaintiff,  at  the  execution  of  the 
note  and  mortgage,  was  indebted  to  defendant  in  a  larger  sum  than  that 
named  in  the  note,  and  the  reply  alleged  that  at  the  date  of  the  execution  of 
the  note  and  mortgage  there  were  other  matters  of  mutual  account  between 
the  plaintiff  and  defendant,  and  that  on  that  date  the  plaintiff  and  defendant 
mutually  agreed  that  all  obligations  between  them,  except  the  note  and  mort- 

(595) 


§    694  PLEADINGS  (  Ch.  11 

This  statute  does  not  authorize  the  court  to  require  a  party  to 
plead  his  evidence,71  or  to  supply  omitted  matters  which  would 
give  the  opposite  party  an  opportunity  to  demur.72 

The  motion  is  addressed  to  the  trial  court's  sound  discretion,73 
but  should  be  sustained  where  the  statutory  grounds  clearly  ap- 

gage  should  be  extinguished  and  satisfied,  a  motion  to  make  the  reply  more 
definite  and  certain  was  properly  overruled.  Hutchings  v.  Cobble,  30  Okl.  158, 
120  P.  1013. 

A  petition  in  an  action  for  conversion  held  sufficient  as  against  an  objection 
to  evidence,  in  absence  of  a  motion  to  make  more  definite  and  certain,  where 
it  advised  defendant  of  the  nature  of  plaintiff's  claim.  Farmers'  &  Merchants' 
Nat.  Bank  v.  Gann,  148  P.  249,  95  Kan.  237. 

Where  in  an  action  for  death  of  an  employe,  it  appeared  that  the  intestate's 
fellow  employes  knew  how  he  was  killed,  and  before  the  trial  all  the  evidence 
offered  by  plaintiff  relating  to  the  occurrence  was  taken  by  deposition,  so 
that  defendant  had  full  knowledge  of  the  facts,  it  was  not  reversible  error 
to  overrule  a  motion  to  require  general  allegations  of  the  petition  as  to  neg- 
ligence to  be  made  more  definite.  St.  Louis  &  S.  F.  Ry.  Co.  v.  French,  44  P. 
12,  56  Kan.  584. 

Where  a  petition  in  a  personal  injury  case  alleges  a  specific  act  of  negli- 
gence by  one  of  three  designated  agents  of  the  defendant,  it  is  not  subject  to 
a  motion  to  make  the  allegation  more  definite  by  pointing  out  the  particular 
agent,  where  it  is  also  averred  that  plaintiff  has  no  further  information. 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Davis,  79  P.  130,  70  Kan.  578. 

The  fact  that  a  petition  setting  forth  a  specific  cause  of  action  contains 
general  allegations  did  not  render  erroneous  the  overruling  of  a  motion  to 
make  more  definite  and  certain,  where  the  court  treated  the  general  allegations 
as  surplusage,  and  confined  plaintiffs  to  the  specific  cause  of  action.  Dwelle 
v.  Dwelle,  40  P.  825,  1  Kan.  App.  473. 

It  is  proper  to  overrule  a  motion  to  make  a  petition  more  definite  and  cer- 
tain, made  long  after  the  issues  were  joined,  and  only  when  the  case  is  called 
for  trial,  where  the  petition  is  fully  traversed,  has  not  been  otherwise  assail- 
ed, and  is  not  clearly  misleading.  Phoenix  Ins.  Co.  of  Brooklyn  v.  Arnoldy, 
47  P.  178,  5  Kan.  App.  174. 

TI  Moore  v.  Continental  Gin  Co.  (Okl.)  173  P.  809;  Shawnee  Life  Ins.  Co. 
v.  Taylor,  58  Okl.  313,  160  P.  622 ;  Scott  v.  Shewell,  164  P.  1061,  100  Kan.  466. 

Motion  to  require  petition  to  be  made  more  definite  and  certain  by  setting 
out  evidentiary  facts  is  properly  denied,  where  ultimate  facts  are  alleged. 
Jackson  v.  Uncle  Sam  Oil  Co.  of  Kansas;  156  P.  756,  97  Kan.  674. 

72  Listen  v.  Nail,  63  Okl.  212,  164  P.  467. 

7  s  City  of  Lawton  v.  Hills,  53  Okl.  243,  156  P.  297;  Frey  v.  Failes,  132  P. 
342,  37  Okl.  297;  Felt  v.  Westlake  (Okl.)  174  P.  1041;  Cribb  v.  Hudson,  160 
P.  1019,  99  Kan.  65. 

An  order  requiring  a  petition  to  be  made  more  direct  and  certain  will  not 
be  reversed,  where  there  is  a  doubt  as  to  the  issue  presented,  or  whether  a 
cause  of  action  is  stated,  or  whether  defendant  is  charged  with  notice  of  what 
he  is  required  to  defend  against.  Skelton  v.  Standard  Inv.  Co.,  37  Okl.  82, 
130  P.  562. 

(596) 


Art.  10)  MOTIONS  AND  ORDERS   THEREON  §  694 

^  pear.74  It  lies  only  when  the  pleading  is  so  uncertain  that  the 
charge  or  defense  is  not  apparent,  and  does  not  relate  to  the  refine- 
ments of  common-law  pleadings.75  To  be  available,  however,  an 
objection  to  the  generality  or  indefiniteness  of  a  pleading  should  be 
raised  by  such  a  motion.76 

PAailure  to  attach  to  a  petition  a  copy  of  the  written  instrument 
upon  which  the  cause  of  action  is  based,  should  be  challenged  by 
motion.77 

74  A  pleading  containing  only  a  general  allegation  of  negligence  is  subject 
to  a  motion  to  make  more  definite  and  certain.    Price  v.  Atchison  Water  Co., 
50  P.  450,  58  Kan.  551,  62  Am.  St.  Rep.  625. 

Where  the  petition  in  an  action  to  recover  unauthorized  fees  and  money 
received  by  the  board  of  county  commissioners  failed  to  show  wherein  the  fees 
were  illegal,  and  wherein  the  claim  allowed  by  the  commissioners  for  which 
he  was  alleged  to  have  unlawfully  received  the  money  was  unlawful,  it  was 
error  to  deny  a  motion  to  make  the  same  more  definite.  Roe  v.  Board  of 
Com'rs  of  Elk  County,  40  P.  1082,  1  Kan.  App.  219. 

Where  petition  alleged  that  employer  neglected  to  furnish  safe  means  of 
passage  to  and  from  its  brick  kilns  or  running  boards,  and  negligently  re- 
moved cross-bricks  from  ditches,  whereby  employ^  going  out  of  kiln  acciden- 
tally stepped  into  hole  in  ditch  and  was  injured,  it  was  not  error  to  require 
plaintiff  to  make  his  petition  more  definite  and  certain  as  to  place  of  injury. 
Anderson  v.  Denison  Clay  Co.,  104  Kan.  766,  180  P.  797. 

Petition  in  action  against  outgoing  clerk  of  county  court  and  surety  on  his 
bond  for  moneys  received  during  office,  held  insufficient  as  against  motion  to 
require  petition  to  be  made  more  definite  and  certain  by  setting  forth  sources 
of  moneys  and  separate  receipts  and  disbursements.  Swarts  v.  State  4Okl.) 
174  P.  255. 

Where  allegations  of  a  complaint  for  slander  contain  two  separate  causes 
of  action  and  show  that  the  slanderous  words  were  spoken  in  the  same  con- 
versation, defendant  is  entitled,  on  motion,  to  have  the  petition  made  more 
definite,  to  the  end  that  he  may  not  be  tried  on  two  causes  of  action,  when 
but  one  exists.  Thompson  v.  Harris,  67  P.  456,  64  Kan.  124,  91  Am.  St.  Rep. 
187. 

A  petition  alleged  that  a  copy  of  an  account  attached  as  an  exhibit,  indi- 
cating merely  dates  and  sums  of  money,  generally  represented  grain  sold  and 
delivered.  There  was  nothing  indicating  the  quantity  or  kinds  of  grain,  or 
which  items  referred  to  grain.  Held,  that  a  motion  to  make  more  definite 
should  have  been  granted.  Nash  v.  Deuton,  51  P.  896,  59  Kan.  771. 

75  Board  of  Com'rs  of  Republic  County  v.  United  States  Fidelity  &  Guaran- 
ty Co.,  150  P.  590,  96  Kan.  255. 

TAEng-elbrecht  v.  Herrington,  172  P.  715,  101  Kan.  720,  103  Kan.  21,  L.  R. 
A.  1918E,  785;  Board  of  Com'rs  of  Neosho  County  v.  Spearman,  130  P.  677, 
89  Kan.  106. 

77  Incorporated  Town  of  Sallisaw  v.  Chappelle  (Okl.)  171  P.  22;  Rev.  Laws 
1910,  §  4769. 

Where  a  petition  alleges  a  contract  for  sale  of  lands,  made  between  plain- 

(597) 


§§  695-697  PLEADINGS  (Ch.  11 

§  695.    Form  and  requisites 

A  motion  to  make  a  pleading  more  definite,  which  fails  to  point 
out  wherein  it  is  indefinite,  is  properly  overruled.78 

MOTION  TO  MAKE  MORE  DEFINITE  AND  CERTAIN 

(Caption.) 

Conies  now  the  above  named  defendant,  A.  B.,  and  moves  the 
court  to  require  the  plaintiff  to  make  his  petition  filed  herein  more 
definite  and  certain  in  the  following  particulars,  to  wit:  (Here 
set  forth  particulars  in  which  petition  should  be  more  definite 
and  certain.) 

,  Attorneys  for  Defendant. 

§  696.    Time  of  making 

A  motion  made  by  defendant  to  require  plaintiff  to  make  his 
pleading  more  definite  and  certain  is  generally  too  late  when  not 
made  until  after  the  case  is  called  for  trial.79  It  may  be  made  at 
any  time  within  the  period  allowed  to  answer  or  demur,  and,  if 
defendant  obtains  an  extension  of  time  in  which  to  plead,  his  right 
to  make  such  motion  is  not  waived,  since  the  words  "to  plead" 
are  not  limited  to  the  filing  of  an  answer  or  demurrer,  but  include 
any  pleading  provided  for  by  law.80 

It  was  not  an  abuse  of  discretion  to  deny  an  application  for  leave 
ttj  file,  out  of  time,  a  motion  requiring  plaintiff  to  make  his  petition 
more  definite  and  certain,  where  no  showing  was  made  by  "defend- 
ant that  he  had  any  valid  defense.81 

The  motion  may  be  heard,  though  filed  by  leave  of  court  after 
defendant  is  in  default.82 

§  697.    Waiver — Dismissal 

Failure  to  secure  a  ruling  upon  a  motion  to  make  the  petition 
more  definite  and  certain  constitutes  an  abandonment  and  waiver 

/ 

tiff  and  defendant's  agent,  and  that  the  authority  of  the  agent  is  in  writing,  it 
is  not  error  to  require  plaintiff  to  set  out  a  copy  of  such  writing.  Atwood  v. 
Rose,  122  P.  929,  32  Okl.  355. 

TS  Grimes  v.  Cullison,  41  P.  355,  3  Okl.  268;  Union  Coal  Co.  v.  Wooley,  54 
Okl.  391,  154  P.  62. 

TO  St.  Louis  &  S.  F.  Ry.  Co.  v.  Snaveley,  28  P.  615,  47  Kan.  637. 

so  St.  Louis  &  S.  F.  R.  Co.  v.  Young,  130  P.  Oil,  35  Okl.  521. 

si  Horton  v.  Haines,  102  P.  121,  23  Okl.  878. 

82  Anderson  v.  Denison  Clay  Co.,  104  Kan.  766,  180  P.  797. 

(598) 


Art.  10)  MOTIONS  AND  ORDERS   THEREON  §§    698~699 

thereof.83     Failure  to  comply  with  an  order  sustaining  such  mo- 
tion authorizes  dismissal  of  the  action.84 

§  698.  Motion  to  require  pleader  to  separately  state  and  number 
A  motion  to  separately  state  and  number  is  addressed  to  the 
sound  discretion  of  the  trial  court ; 85  but  where  two  or  more  caus- 
es of  action  are  stated  in  the  same  petition,  and  not  separately  stat- 
ed or  numbered,  it  is  error  for  the  court  to  overrule  a  motion  of 
the  defendant  to  require  the  plaintiff  to  separately  state  and  num- 
ber the  several  causes  of  action  stated  in  his  petition.88 

§  699.    Form  and  requisites 

A  motion  to  require  causes  of  action  to  be  separately  stated  and 
numbered  should  designate  the  matters  constituting  each  separate 
cause.87 

ss  Arnold  v.  Burks,  63  Okl.  273,  164  P.  970. 

«*  Anderson  v.  Denison  Clay  Co.,  104  Kan.  766,  180  P.  797. 

ss  Cribb  v.  Hudson,  160  P.  1019,  99  Kan.  65. 

sa  Provident  Trust  Co.  v.  Coron,  49  P.  345,  5  Kan.  App.  431. 

Under  Code  Civ.  Proc.  Kan.  §  88,  and  Gen.  St.  Kan.  1901,  §  4522,  where  a 
petition  sets  up  a  cause  of  action  in  ejectment  and  another  for  rents  and 
profits,  a  motion  to  separately  state  and  number  the  two  causes  of  action 
should  be  sustained.  New  v.  Smith,  84  P.  1030,  73  Kan.  174. 

A  petition  against  the  A.  and  the  F.,  and  other  railroad  companies,  alleged 
that  plaintiff  was  a  stockholder  in  the  F.  company,  and,  after  setting  out  a 
history  of  certain  transactions,  prayed  that  the  A.  company  be  compelled  to 
account  for  the  proceeds  of  certain  bonds  which  it  is  alleged  were  wrongfully 
surrendered  to  it  by  the  F.  company;  that  it  recover  from  the  A.  company 
the  rents  and  profits  of  the  F.  company  from  the  time  it  was  built ;  that  cer- 
tain shares  of  stock  of  the  F.  company  which  were  issued  to  the  A.  company 
be  canceled ;  and  that  a  consolidation  of  the  A.,  the  F.,  and  other  companies 
be  declared  void.  Held,  that  plaintiff  should  have  been  required  to  separately 
state  and  number  his  several  causes  of  action.  Atchison,  T.  &  S.  F.  R.  Co. 
v.  Board  of  Com'rs  of  Sumner  County,  33  P.  312,  51  Kan.  617. 

Where  a  petition  alleges  as  ground  for  damages  the  premature  bringing  of 
a  former  action  by  defendant  against  plaintiff,  and  its  dismissal,  and  that 
such  action  has  been  determined  by  the  court  as  prematurely  brought,  and 
judgment  therein  rendered  against  plaintiff,  alleging  in  another  paragraph 
that  defendant  sued  to  enjoin  plaintiff  from  doing  certain  acts,  and  that  such 
injunction  action  was  dismissed  and  judgment  rendered  for  plaintiff  for  costs, 
and  a  third  paragraph  alleges  refusal  of  defendant  to  do  certain  things  which 
he  had  agreed  to  do  under  a  written  contract,  it  states  three  causes  of  action, 
so  that  a  motion  to  require  these  three  causes  to  be  separately  stated  and 
numbered  was  proper.  fBurdick  v.  Carbondale  Inv.  Co.,  80  P.  40,  71  Kan.  121. 

ST  Southern  Surety  Co.  v.  Waits,  45  Okl.  513,  146  P.  431. 

Motion  to  separately  state  and  number,  which  fails  to  point  out  causes  of 

(599) 


§§  699-701  PLEADINGS  (Ch.  11 

MOTION  TO   SEPARATELY  STATE  AND   NUMBER 

(Caption.) 

Comes  now  the  defendant,  A.  B.,  and  moves  the  court  to  require 
the  plaintiff  to  separately  state  and  number  the  various  causes  of 
action  alleged  in  plaintiff's  petition  filed  herein. 

,  Attorneys  for  Defendant. 

§  700.    Waiver — Dismissal 

The  right  to  move  to  have  different  causes  of  action  separately 
stated  and  numbered  is  waived  by  demurring  to  either  the  whole 
or  a  part  of  the  petition.88 

When  a  petition  embraces  two  separate  and  distinct  causes  of 
action  in  one  count,  and,  on  motion,  plaintiff  is  required  by  the 
court  to  separately  state  and  number  them,  and  he  refuses  to  do 
so,  it  is  not  error  for  the  court  to  dismiss  the  action  without  prej- 
udice to  a  future  one.89 

§  701.     Motion  to  require  election — Form 

Plaintiff  cannot  ordinarily  be  required  to  elect  on  which  count  he 
will  proceed,90  unless  the  causes  of  action  are  inconsistent  with 

action  or  call  court's  attention  to  paragraphs  which  should  be  separately 
stated  and  numbered,  is  too  general.  Henry  v.  Gulf  Coast  Drilling  Co.,  56 
Okl.  604,  156  P.  321 ;  Western  Union  Tel.  Co.  v.  Simpson,  62  P.  901,  10  Kan. 
App.  473. 

Where  it  is  not  obvious  that  the  petition  states  more  than  one  cause  of  ac- 
tion, and  the  motion  to  require  plaintiff  to  separately  state  and  number  the 
several  causes  of  action  is  general  and  fails  to  specify  wherein  the  petition 
states  more  than  one  cause  of  action,  it  is  not  error  to  overrule  the  motion. 
Cockrell  v.  Schmitt,  94  P.  521,  20  Okl.  207,  129  Am.  St.  Rep.  737. 

ss  First  Nat.  Bank  of  Tishomingo  v.  Ingle,  132  P.  895,  37  Okl.  276. 

Where  petition  states  both  statutory  and  common-law  cause  of  action,  grow- 
ing out  of  same  transaction,  in  one  count,  there  is  a  defect  within  Rev.  Laws 
1910,  §  4738,  that  may  be  remedied  on  motion,  but  cannot  be  reached  by  de- 
murrer. Shelby-Downard  Asphalt  Co.  v.  Enyart  (Okl.)  170  P.  708. 

89  Eisenhouer  v.  Stein,  15  P.  167,  37  Kan.  281. 

»o  Woodman  v.  Davis,  4  P.  262,  32  Kan.  344. 

Where  petition  alleged  deposit  with  defendant  bank  of  a  note  for  collec- 
tion, which  note  was  secured  by  chattel  mortgage,  and  the  bank  allowed  the 
mortgage  to  expire  and  also  failed  to  apply  certain  deposits  made  in  the  bank 
by  the  maker  to  payment  of  the  note  but  applied  such  deposits  to  its  own  use, 
it  was  error  to  require  plaintiff  to  elect  on  which  theory  he  would  rely  for 
recovery.  Bourland  v.  Madill  State  Bank,  124  P.  314,  32  Okl.  761. 

Where  petition  alleged  execution  of  note,  its  return  to  maker,  and  his  re- 
ceipt therefor  conditioned  to  pay  in  case  of  any  mistake  as  to  his  claim  of 

(600) 


Art.  10)  MOTIONS   AND  ORDERS   THEREON  §   701 

each  other.91  For  example,  where  the  petition  alleged  in  one  para- 
graph the  existence  of  an  agency,  and  in  another  that  the  acts  of 
the  party  assuming  to  act  as  agent  had  been  ratified,  the  court  prop- 
erly refused  to  require  plaintiff  to  elect  upon  which  he  would 
stand.92 

In  a  suit  on  account  for  services  rendered,  where  there  is  uncer- 
tainty as  to  the  grounds  of  recovery,  there  may  be  properly  joined 
in  the  petition  a  count  on  an  express  contract,  a  count  on  quantum 
meruit,  and  the  granting  of  a  motion  to  require  plaintiff  to  elect  is 
addressed  to  the  discretion  of  the  trial  court.03 

Where  a  petition  states  one  cause  of  action  and  the  evidence 
tends  to  establish  that  cause  of  action,  it  is  not  error  to  refuse  to 
require  the  plaintiff  to  make  any  election  between  different  phases 
of  the  evidence.94  But  where  a  party  pleads  facts  constituting  two 
causes  of  action,  one  for  rescission  of  contract  and  one  for  dam- 
ages for  breach  of  warranty,  it  is  proper  to  require  an  election  be- 
tween the  causes.95 

Where  separate  causes  of  action  are  improperly  joined  in  a  pe- 

payment,  an  arbitration  finding  it  unpaid,  maker's  failure  to  acquiesce  in 
award  or  to  pay  or  return  note,  it  was  not  error  to  deny  motion  to  compel 
plaintiff  to  elect  as  to  cause  of  action,  submitted  by  court  as  an  action  upon 
an  alleged  indebtedness.  Washington  Nat.  Bank  v.  Myers,  104  Kan.  526,  180 
P.  268. 

Where  a  petition  states  facts  entitling  plaintiff  either  to  a  decree  of  specific 
performance  of  a  contract  to  convey  land  or  judgment  for  damages  and  prays 
for  such  judgment,  he  may  not  be  required  to  elect  his  remedy  before  trial. 
Huey  v.  Starr,  101  P.  1075,  79  Kan.  781,  rehearing  denied  104  P.  1135,  79  Kan. 
781. 

»i  Action  for  specific  performance  of  husband  and  wife's  oral  contract  to 
raise  plaintiff  as  their  child,  and  that  on  their  death  she  should  inherit  as  if 
they  died  intestate  and  to  recover  on  implied  contract  for  reasonable  value  of 
plaintiff's  services,  held  inconsistent,  and  court  did  not  err  in  compelling  plain- 
tiff to  elect.  Pantel  v.  Bower,  104  Kan.  18,  178  P.  241. 

A  count  of  a  petition  which  claims  the  price  of  property  on  the  theory  that 
plaintiff  has  parted  with  title  to  it  by  sale,  and  that  defendant  owns  it  and 
is  entitled  to  its  possession,  is  inconsistent  with  another  count  asking  dam- 
ages as  in  trover  for  its  conversion  on  the  theory  that  the  plaintiff  owned  it, 
and  it  is  not  error  to  require  an  election  between  such  counts.  J.  B.  Ehrsam 
&  Sons  Mfg.  Co.  v.  Jackman,  85  P.  559,  73  Kan.  435,  rehearing  denied  91  P. 
486,  73  Kan.  435. 

» 2  Amazon  Fire  Ins.  Co.'v.  Bond  (Okl.)  165  P.  414. 

»s  Mellon  v.  Fulton,  98  P.  911,  22  Okl.  636,  19  L.  R.  A.  (N.  S.)  960. 

»4  Harris  v.  Morrison,  163  P.  1062,  100  Kan.  157. 

»s  Muenzenuiaycr  v.  Hay,  159  P.  1,  98  Kan.  538. 

(601) 


§§  701-702  PLEADINGS  (Ch.  11 

tition  and  no  demurrer  is  filed,  the  defect  cannot  be  taken  advan- 
tage of  by  motion  to  require  plaintiff  to  elect.96 

As  inconsistent  defenses  may  be  included  in  one  answer,  election 
between  them  cannot  be  required.97 

Misjoinder  of  causes  of  action  is  not  raised  by  a  motion  to  re- 
quire the  pleader  to  elect.98 

MOTION  TO    REQUIRE  ELECTION 

(Caption.) 

Comes  now  the  above  named  defendant,  and  moves  the  court 
to  require  the  plaintiff  to  elect  on  which  cause  of  action  stated  in 
his  petition  he  will  proceed,  for  the  reason  that  in  the  first  cause 
of  action  therein  stated  plaintiff  repudiates  and  asks  to  rescind 
the  contract  therein  alleged,  for  the  reason  that  the  same  is  void 
on  the  ground  of  fraud,  and  in  the  second  cause  of  action  alleged 
plaintiff  seeks  to  affirm  said  alleged  contract  and  recover  damages 
for  an  alleged  breach  thereof,  and  that  said  causes  of  action  are 
inconsistent.  X.  Y.,  Attorney  for  Defendant. 

§  702.    Time  of  making 

An  objection  to  inconsistent  counts  in  a  petition  and  motion  to  s 
require  plaintiff  to  elect  should  be  made  before  answer,  and  the 
overruling  of  such  objection  made  at  the  commencement  of  trial  is 
within  the  discretion  of  the  trial  court.99 

se  Gates  v.  Freeman,  57  Okl.  449,  157  P.  74. 

97  Emerson-Brantingham  Implement  Co.  v.  Ware  (Okl.)  174  P.  1066. 

Even  if  defenses  are  inconsistent,  unless  expressly  prohibited  by  statute, 
they  may  be  united  in  one  answer,  and  the  pleader  cannot  be  compelled  to 
elect  between  them.  Covington  v.  Fisher,  97  P.  615,  22  Okl.  207. 

Where  answer  sets  forth  in  separate  paragraphs  a  different  state  of  facts, 
each  of  which  constitutes  a  defense  or  counterclaim,  defendant  cannot  be  re- 
quired to  elect  on  which  paragraph  he  will  proceed  to  trial.  Oklahoma  Hay 
&  Grain  Co.  v.  T.  D.  Randall  &  Co.  (Okl.)  168  P.  1012 ;  Rev.  Laws  1910,  §  4745, 
subd.  3. 

»s  West  v.  Madansky  (Okl.)  194  P.  439. 

99  Day  v.  Kansas  City  Pipe  Line  Co.,  125  P.  43,  87  Kan.  617. 
(602) 


Art.  11)  DEMURRER  §  703 


ARTICLE  XI 

DEMURRER 

Sections 

703.  Grounds-rForm. 

704.  Misjoinder  ot  parties. 

705.  Office  of  demurrer. 

706.  Requisites  and  construction. 

707.  Time  to  demur — After  motions.  i 
70S.  Admissions  for  purpose  of  demurrer. 

709.  General  demurrer. 

710.  Limitations. 

711.  Objection  to  introduction  of  any  evidence  as  alternative. 

712.  Demurrer  and  answer. 

713.  Where  single  count. 

714.  Joint  demurrer. 

715.  Demurrer  to  answer. 

716.  To  amended  answer. 

717.  To  set-off  or  counterclaim. 

718.  Demurrer  to  reply. 

719.  Demurrer  relating  back. 

720.  Construction  of  pleading  demurred  to. 

721.  Ruling,  order,  and  judgment. 

§  703.     Grounds — Forms 

"The  defendant  may  demur  to  the  petition  only  when  it  appears 
on  its  face,  either : 

"First.  That  the  court  has  no  jurisdiction  of  the  person  of  the 
defendant,  or  the  subject  of  the  action. 

"Second.    That  the  plaintiff  has  no  legal  capacity  to  sue. 

"Third.  That  there  is  another  action  pending  between  the  same 
parties  for  the  same  cause. 

"Fourth.  That  there  is  a  defect  of  parties,  plaintiff  or  defend- 
ant.1 

i  "Defect  of  parties,"  within  the  statute  making  it  a  ground  of  demurrer, 
means  too  few  and  not  too  many  parties,  and  is  not  synonymous  with  "mis- 
joinder  of  parties,"  which  means  an  excess  of  parties.  Niblo  v.  Drainage 
Dist.  No.  3,  58  Okl.  639,  160  P.  468. 

A  petition  alleging  a  cause  of  action  against  a  railway  company  and  cer- 
tain persons  named  as  receivers  of  its  property  is  not  demurrable  on  the 
ground  that  it  shows  a  defect  of  parties,  nor  on  the  ground  that  it  fails  to 
state  a  cause  of  action  against  either  one  because  the  other  is  charged  also 
with  the  same  liability.  Union  Pac.  Ry.  Co.  v.  Smith,  52  P.  102,  59  Kan.  80. 
.  A  demurrer  to  a  petition  for  a  defect  of  parties  defendant  should  point  out 
the  parties  improperly  omitted,  and  where  this  is  not  done  the  overruling  of 

(603) 


§    703  PLEADINGS  (Ch.  11 

"Fifth.     That  several  causes  of  action  are  improperly  joined.2 
"Sixth.     That  the  petition  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action."  3 

DEMURRER  TO   PETITION,   CONTAINING  ALL  STATUTORY   GROUNDS 

(Caption.) 

Comes  now  the  said  defendant  and  demurs  to  the  petition  of 
plaintiff  filed  herein,  and  for  grounds  of  demurrer  alleges: 

1.  That  it  appears  upon  the  face  of  said  petition  that  the  court 
has  no  jurisdiction  of  the  person  of  this  defendant. 

2.  That  the  court  has  not  jurisdiction  of  the  subject  of  this  ac- 
tion (pointing  out  why). 

the  demurrer  cannot  be  regarded   as  erroneous.    Federal  Betterment  Co.  v. 
Blaes,  88  P.  555,  75  Kan.  69. 

Where  a  suit  is  brought  against  one  person,  and  the  petition  discloses  on  its 
face  that  the  debt  sued  on  is  the  debt  of  a  co-partnership,  a  demurrer  for  de- 
fect of  parties  defendant  is  the  proper  practice,  and  should  be  sustained.  Cox 
v.  Gille  Hardware  &  Iron  Co.,  58  P.  645,  8  Okl.  483. 

A  general  demurrer  does  not  raise  the  question  of  defect  of  parties.  Davis, 
v.  Caruthers,  97  P.  581,  22  Okl.  323.  A  defect  of  parties  is  waived  where 
there  is  no  special  demurrer  on  that  ground  and  the  question  is  not  otherwise 
raised.  Id. 

The  question  of  defect  of  parties  plaintiff  must  be  raised  by  demurrer  if 
the  defect  appears  on  the  face  of  the  petition,  otherwise  by  answer,  and  if 
no  objection  be  taken  any  other  way,  the  same  is  waived.  Culbertson  v. 
Mann,  30  Okl.  249,  120  P.  918;  Coulson  v.  Wing,  22  P.  570,  42  Kan.  507,  16  Am. 
St.  Rep.  503 ;  Union  Pac.  Ry.  Co.  v.  Kindred,  23  P.  112,  43  Kan.  134 ;  Ryan  v. 
Phillips,  44  P.  909,  3  Kan.  App.  704 ;  Harrah  State  Bank  v.  School  Dist.  No. 
70,  Oklahoma  County,  47  Okl.  593,  149  P.  1190 ;  Burton  v.  Cochran,  47  P.  569, 
5  Kan.  App.  508.  • 

Objections  to  a  counterclaim  which  asks  affirmative  relief  on  the  ground 
of  defect  of  parties  are  waived  by  reply  without  demurrer.  Wyman  v.  Her- 
ard,  50  P.  1009,  9  Okl.  35. 

2  West  v.  Madansky,  80  Okl.  161,  194  P.  439 ;  Lyons  v.  Berlau,  73  P.  52,  67 
Kan.  426. 

Under  the  rule  of  procedure  in  the  territory  of  Oklahoma  prior  to  its  admis- 
sion as  a  state,  which  is  the  rule  of  procedure  now  in  force  in  the  state,  mis- 
joinder  of  causes  of  action  should  be  raised  by  demurrer.  Choctaw,  O.  &  G. 
R.  Co.  v.  Burgess,  97  P.  271,  21  Okl.  653. 

Where  a  petition  contains  two  or  more  causes  of  action  which  cannot  be 
properly  united  in  the  same  action,  the  fact  that  they  are  in  one  statement, 
instead  of  being  set  forth  in  separate  counts,  will  not  deprive  defendant  of 
his  right  to  demur.  Benson  v.  Battey,  78  P.  844,  70  Kan.  288,  3  Ann.  Cas.  283. 

s  Rev.  Laws  1910,  §  4740. 

A  petition  warranting  relief  either  at  law  or  in  equity  is  good  on  a  gen- 
eral demurrer.  Schanbacher  v.  Payne,  79  Okl.  101,  191  P.  173. 

(604) 


Art.  11)  DEMURRER  §§  703-705 

3.  That  the  plaintiff  has  no  legal  capacity  to  sue  (pointing  out 
defect  relied  upon). 

4.  That  there  is  another  action  pending  between  the  same  par- 
ties for  the  same  cause  (specifying  same). 

5.  That  there  is  a  defect  of  parties  plaintiff  (or  defendant)  in 
the  omission  of  (designating  party)  who  is  a  necessary  party  plain- 
tiff (or  defendant). 

6.  That  several  causes  of  action  are  improperly  joined,  in  this, 
to  wit :    (Pointing  out  how.) 

7.  That  the  petition  does  not  state  facts  sufficient  to  constitute 
a  cause  of  action  in  favor  of  plaintiff  and  against  this  defendant 

8.  That  said  petition  shows  upon  its  face,  that  the  alleged  cause 
of  action  is  barred  by  the  statute  of  limitations  of  the  state  of  Ok- 
lahoma. A.  B.,  Attorney  for  Defendant. 

§  704.    Misjoinder  of  parties 

A  misconduct  of  parties  plaintiff  is  not  a  cause  for  demurrer.4 

§  705.     Office  of  demurrer 

The  office  of  a  demurrer  is  primarily  to  raise  an  issue  of  law  on 
facts  raised  in  the  pleading  attacked,8  and  to  challenge  the  suffi- 
ciency of  a  pleading  on  its  face.6 

*  First  Nat.  Bank  of  Russell  v.  Knoll,  52  P.  619,  7  Kan.  App.  352 ;  Stiles  v. 
City  of  Guthrie,  41  P.  383,  3  Okl.  26;  Martin  v.  Clay,  56  P.  715,  8  Okl.  46; 
Powell  v.  Dayton,  S.  &  G.  R.  R.  Co.,  11  P.  222,  13  Or.  446 ;  Pierson  v.  Fuhr- 
mann,  27  P.  1015,  1  Colo.  App.  187;  Stiles  v.  City  of  Guthrie,  41  P.  383,  3  Okl. 
26 ;  Marth  v.  City  of  Kingfisher,  98  P.  436,  22  Okl.  602,  18  L.  R.  A.  (X.  S.) 
1238 ;  City  of  Pawhuska  v.  Rush,  119  P.  239,  29  Okl.  759 ;  Marshall  v.  City  of 
Osborne,  104  Kan.  377,  179  P.  303 ;  Bourland  v.  Madill  State  Bank,  124  P.  314, 
32  Okl.  761;  Tucker  v.  Hudson,  38  Okl.  790,  134  P.  21;  Dieterle  v.  Harris 
(Okl.)  169  P.  873. 

Neither  misjoinder  of  parties  nor  excess  of  parties  can  be  taken  advantage 
of  by  demurrer,  but  can  only  be  reached  by  motion  filed  before  joining  issues 
on  the  merits.  State  Exch.  Bank  of  Elk  City  v.  National  Bank  of  Commerce 

s  Bristow  v.  Carrigar,  132  P.  1108,  37  Okl.  736. 

W|here  it  appears  on  the  face  of  petition  that  contract  sued  on  is  within 
statute  of  frauds  the  defect  may  be  taken  advantage  of  by  demurrer.  Crab- 
tree  v.  Eufaula  Cotton  Seed  Oil  Co.,  122  P.  664,  32  Okl.  465. 

An  objection  that  a  petition  fails  to  state  a  cause  of  action  should  be  pre- 
sented by  demurrer.  Lankford  v.  Schroeder.  47  Okl.  279,  147  P.  1049,  L.  R. 
A.  1915F,  623. 

«  Ball  v.  White,  50  Okl.  429,  150  P.  901 ;  McConnell  v.  Davis,  46  Okl.  201,  148 
P.  687. 

(605) 


§    705  PLEADINGS  (Ch.  11 

A  demurrer  will  not  lie  where  the  alleged  defects  do  not  appear 
on  the  face  of  the  pleading,7  or  to  rid  a  single  cause  of  action  or  de- 
fense of  irrelevant,  redundant,  or  improper  matter,8  or  because  of 
mere  generality  in  the  allegation  of  essential  facts  or  mere  conclu- 
sions of  fact,9  or  because  the  pleading  is  indefinite  and  uncertain 
and  properly  subject  to  a  motion  to  make  more  definite  and  cer- 
tain,1-0 or  because  of  redundancies  which  may  properly  be  reached 
by  motion  to  strike  out.11  Nor  will  a  demurrer  raise  the  question 
of  inconsistency  or  departure  in  the  pleadings,12  or  reach  a  failure 

(Old.)  174  P.  796,  2  A.  L.  B.  211 ;  Same  v.  Traders'  Nat.  Bank  of  Kansas  City, 
Mo.  (Okl.)  174  P.  799;  Cfcoctaw,  O.  &  G.  R.  Co.  v.  Burgess,  97  P.  271,  21  Okl. 
653. 

'  Continental  Ins.  Co.  v.  Pratt,  55  P.  671,  8  Kan.  App.  424 ;  Sweet  v.  Crane, 
39  Okl.  248,  134  P.  1112. 

Where  the  petition,  in  an  action  on  a  voluntary  bond  of  a  district  clerk, 
charged  the  due  execution  of  the  bond,  the  defense  that  it  was  given  without 
consideration,  not  appearing  therein,  could  not  be  raised  by  demurrer.  Ahs- 
muhs  v.  Bowyer,  39  Okl.  376,  135  P.  413,  50  L.  B.  A.  (N.  S.)  1060. 

Where  a  petition  in  replevin,  on  its  face,  states  a  cause  of  action,  and  the 
defendant  relies  upon  the  fact  that  a  valid  service  of  summons  was  not  had 
until  more  than  two  years  after  the  cause  of  action  accrued,  such  a  defense 
cannot  be  raised  by  demurrer.  Harris  v.  Bell,  59  P.  1095,  9  Kan.  App.  706. 

A  demurrer  to  a  bill  of  particulars  on  the  ground  that  there  is  another  ac- 
tion pending  between  the  same  parties  for  the  same  cause  of  action  should  be 
overruled  where  such  fact  does  not  appear  on  the  face  of  the  pleadings. 
Biard  v.  Laumann,  116  P.  780,  29  Okl.  138. 

s  Sparks  v.  Smeltzer,  93  P.  338,  77  Kan.  44. 

»  Gano  v.  Cunningham,  128  P.  372,  88  Kan.  300. 

Conclusions  of  fact  held  not  to  render  a  pleading  bad  as  against  a  demurrer, 
in  the  absence  of  a  motion  to  make  definite  and  certain.  Boberts  v.  Pendle- 
ton,  142  P.  289,  92  Kan.  847. 

A  demurrer  to  a  petition  on  the  ground  that  the  material  facts  are  set  forth 
in  general  terms  will  not  lie.  Board  of  Com'rs  of  Neosho  County  v.  Spear- 
man, 130  P.  677,  89  Kan.  106. 

10  City  of  Guthrie-v.  Shaffer,  54  P.  698,  7  Okl.  459;  Wey  v.  City  Bank  of 
Hobart,  116  P.  943,  29  Okl.  313. 

Indefiniteness  and  informality  of  pleading  cannot  be  alleged  by  demurrer 
or  objection  to  evidence.  Burnette  v.  Elliott,  84  P.  374,  72  Kan.  624. 

11  Bank  of  Le  Boy  v.  Harding,  41  P.  680.  1  Kan.  App.  389. 

12  Walters  v.  Chance,  85  P.  779,  73  Kan.  680;   Fetzer  &  Co.  v.  Williams,  103 
P.  77,  80  Kan.  554. 

Inconsistent  averments  in  a  petition,  which  might  have  been  stricken  out 
on  motion,  furnish  no  ground  of  demurrer,  if  by  rejecting  them,  a  cause  of  ac- 
tion still  remains.  Nicholson  v.  Nicholson,  109  P.  1086,  83  Kan.  223. 

The  fact  that  more  than  one  ground  of  recovery  may  have  been  pleaded  in 
the  petition,  or  that  the  grounds  set  up  for  recovery  may  not  be  consistent 
with  each  other,  affords  no  reason  for  sustaining  a  demurrer  which  challenges 

(606) 


Art.  11)  DEMURRER  §§  705-706 

to  attach  to  the  petition  a  copy  of  the  written  instrument  upon  which 
the  cause  of  action  is  based.18 

A  petition  is  not  demurrable  because  it  commingles  several  causes 
of  action  erroneously  paragraphed  or  subdivided;  the  remedy  in 
such  cases  being  by  motion  to  separately  state  and  number.1* 

Demurrer  is  not  the  proper  method  by  which  to  object  to  a  suit 
against  a  defendant  by  initials  instead  of  by  his  Christian  name.15 

The  question  of  the  ownership  of  the  notes  sued  on  cannot  be 
raised  by  demurrer.16 

§  706.     Requisites  and  construction 

"The  demurrer  shall  specify  distinctly  the  grounds  of  objection 
to  the  petition.  Unless  it  do  so,  it  shall  be  regarded  as  objecting 
only  that  the  petition  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action."  17 

only  the  sufficiency  of  the  facts  alleged.  Bichel  v.  Oliver,  95  P.  396,  77  Kan. 
696. 

An  objection  to  a  pleading  on  the  ground  of  departure  cannot  be  raised  by 
demurrer.  Merchants'  &  Planters'  Ins.  Co.  v.  Marsh,  125  P.  1100,  34  Okl.  453, 
42  L.  R.  A.  (N.  S.)  996;  Landon  v.  Morehead,  126  P.  1027,  34  Okl.  701;  Purcell 
v.  Corder,  124  P.  457,  33  Okl.  68. 

1 3  Incorporated  Town  of  Sallisaw  v.  Chappelle  (Okl.)  171  P.  22 ;  Rev.  Laws 
1910,  §  4769. 

That  a  copy  of  the  account  sued  on  was  not  attached  to  the  petition  did  not 
render  the  petition  demurrable  under  Rev.  Laws  1910,  §  4769.  Rogers'  Mill- 
ing Co.  v.  Goff,  Gamble  &  Wright  Co.,  46  Okl.  339,  148  P.  1029. 

Petition  held  not  demurrable  where  it  stated  a  cause  of  action  on  account, 
though  exhibits  attached  to  it  suggested  a  doubt  as  to  whether  defendant  act- 
ed in  a  representative  capacity  or  as  an  individual.  Caiman  v.  Kreipke,  139 
P.  698,  40  Okl.  516. 

A  petition  in  an  action  on  account  for  goods  sold  by  a  corporation  held  not 
demurrable,  though  it  did  not  describe  the  account  otherwise  than  as  that  of 
defendant,  and  was  signed  only  by  the  vice  president,  without  any  seal  at- 
tached. Davison  v.  Calmback,  148  P.  625,  95  Kan.  560. 

i*  First  Nat  Bank  of  Tishomingo  v.  Ingle,  132  P.  895,  37  Okl.  276 ;  City 
of  Ellsworth  v.  Rossiter,  26  P.  674,  46  Kan.  237. 

A  demurrer  will  not  lie  against  a  petition  which  is  defective  only  in  not 
separately  stating  and  numbering  the  several  causes  of  the  action  supposed  to 
be  stated  therein.  Walker  v.  Sims,  64  P.  81,  9  Kan.  App.  890. 

Where  petition  states  both  statutory  and  common-law  cause  of  action,  grow- 

15  McColgan  v.  Territory,  49  P.  1018,  5  Okl.  567. 
is  Waldock  v.  Winkler,  51  Okl.  485,  152  P.  99. 
IT  Rev.  Laws  1910,  §  4741. 

A  demurrer  to  a  pleading  must  specify  the  grounds  of  the  objection.  Tootle 
v.  Berkley,  45  P.  77,  57  Kan.  111. 

(607) 


f 

§§  706-708  PLEADINGS  (Ch.ll 

The  question  of  a  defect  of  parties  cannot  be  raised  under  a 
general  demurrer  alleging  simply  a  want  of  facts  sufficient  to  state 
a  cause  of  action.18 

Where  the  petition  is  a  single  cause  of  action  or  count,  though 
the  pleader  paragraphs  the  same  and  numbers  each  paragraph,  it  is 
error  to  sustain  a  demurrer  on  the  ground  "that  none  of  the  counts 
state  a  cause  of  action."  19 

Where  a  demurrer  to  a  petition  consisting  of  one  count  is  sus- 
tained, and  the  same  is  refiled  unchanged,  except  for  a  second  cause 
of  action  plaintiff  attaches  thereto  a  second  count,  a  demurrer  sub- 
sequently filed  only  applies  to  the  second  count.20 

§  707.     Time  to  demur — After  motions 

A  demurrer  to  a  pleading  is  a  waiver  of  all  defects  that  should 
properly  be  raised  by  motion.21 

§  708.    Admissions  for  purpose  of  demurrer 

A  demurrer  to  a  pleading  admits  the  truth  of  the  allegations  there- 
of,22 which  are  well  pleaded,23  but  does  not  determine  the  truth  of 
the  pleader's  inference  based  on  facts  pleaded  unless  the  facts  are 
sufficient  to  authorize  such  inference,24  nor  does  it  admit  the  truth 

ing  put  of  same  transaction,  in  one  count,  there  is  a  defect  within  Rev.  Laws 
1910,  §  4738,  that  may  be  remedied  on  motion,  but  cannot  be  reached  by  de- 
murrer. Shelby-Downard  Asphalt  Co.  v.  Enyart  (Okl.)  170  P.  708. 

is  A.  Helm  &  Son  v.  Briley,  87  P.  595,  17  Okl.  314. 

is  Burton  v.  Doyle,  48  Okl.  755,  150  P.  711. 

20  Schoner  v.  Allen,  105  P.  191,  25  Okl.  2,2. 

21  Union  State  Bank  v.  Woodside  (Okl.)  178  P.  109. 

22  C.  E.  Sharp  Lumber  Co.  v.  Kansas  Ice  Co.,  142  P.  1016,  42  Okl.  689;  Tan- 
cred  v.  Brewer,  75  Okl.  17,  181  P.  490 ;   Gregg  v.  Oklahoma  State  Bank  (Okl.) 
179  P.  613. 

A  demurrer  to  an  answer  admits  the  allegation  of  ownership  therein,  mak- 
ing proof  unnecessary,  though  the  exhibits  thereto  show  that,  under  a  rule  of 
evidence,  defendant  is  without  proof  thereof.  State  v.  Freeman,  62  P.  717,  10 
Kan.  App.  578. 

In  an  action  for  death  of  a  child  from  drowning  in  a  pond  in  a  city  park, 
a  demurrer  to  the  petition  admitted  its  allegations  generally,  and  especially  as 
to  the  physical  conditions  of  the  pond.  Harper  v.  City  of  Topeka,  139  P.  1018, 
92  Kan.  11,  51  L.  R.  A.  (N.  S.)  1032. 

23  A  demurrer  only  admits  facts  which  are  well  pleaded.    Adams  v.  Couch, 
26  P.  1009,  1  Okl.  17. 

A  demurrer  admits  every  material  fact  properly  stated  in  plaintiff's  peti- 
tion. Scrivner  v.  McClelland,  75  Okl.  239,  182  P.  503. 

24  Kee  v.  Armstrong,  Byrd  &  Co.,  75  Okl.  84,  182  P.  494,  5  A.  L.  R.  1349. 
Allegations  of  a  petition  placing  a  practical  interpretation  on  the  bond  sued 

(608) 


Art.  11)  DEMURRER  §§  708-709 

of  the  allegations  of  the  pleading  attacked,  except  for  the  purpose 
of  determining  their  legal  effect/-3  and  to  test  the  demurrer.29 

On  a  demurrer  to  an  answer  which  is  carried  back  to  the  petition, 
the  plaintiff  will  not  be  deemed  to  have  admitted  allegations  in  the 
answer  inconsistent  with  and  contradictory  to  those  included  in  the 
petition.27 

The  pleading  demurred  to  must  be  liberally  construed.28 

§  709.     General  demurrer 

A  general  demurrer  to  a  petition  raises  only  the  question  of  its 
sufficiency  in  stating  a  cause  of  action.29  It  should  be  sustained 
where  the  petition  neither  states  a  cause  of  action  in  equity  or  at 
law,30  or  omits  any  fact  or  facts  essential  to  be  established  by  proof 
to  sustain  the  action,31  or  shows  that  the  remedy  sought  is  barred 

on  were  not  to  be  taken  as  true  on  demurrer  when  inconsistent  with  the  lan- 
guage of  the  bond.  Rettiger  v.  Dannelly,  136  P.  942,  91  Kan.  61. 

Though  a  demurrer  admits  the  facts  of  a  petition,  yet,  where  an  agreement 
is  in  parol,  the  defendant  is  entitled  to  the  benefit  of  the  statute  of  frauds,  un- 
less the  part  performance  pleaded  is  sufficient  to  avoid  its  operation.  Pur- 
cell  v.  Corder,  124  P.  457,  33  Okl.  68.  The  effect  of  a  demurrer  to  a  petition 
pleading  an  oral  agreement  is  the  same  as  an  answer  admitting  the  agreement, 
but  claiming  the  benefit  of  the  statute  of  frauds.  Id.  If  the  petition  alleges 
such  a  part  performance  as  will  take  the  agreement  out  of  the  statute  of 
frauds,  the  demurrer  is  such  an  admission  of  part  performance  as  will  pre- 
clude defendant  from  the  benefit  of  the  statute.  Id. 

25  Jacobs  v.  Vaill,  72  P.  530,  67  Kan.  107. 

26  Buell  v.  U-Par-har-ha,  60  Okl.  79,  159  P.  507. 

27  Marney  v.  Joseph,  145  P.  822,  94  Kan.  18,  Ann.  Gas.  1917B,  225. 

28  On  demurrer  to  a  petition  as  defective  for  not  stating  a  cause  of  action, 
the  petition  must  be  liberally  construed,  and  all  its  allegations  for  the  purpose 
of  the  demurrer  taken  as  true.    Oklahoma  Sash  &  Door  Co.  v.  American  Bond- 
ing Co.  (Okl.)  170  P.  511. 

On  demurrer  to  an  answer  as  not  stating  a  defense,  the  pleading  must  be 
liberally  construed,  and  all  its  allegations,  for  the  purposes  of  the  demurrer, 
taken  as  true;  and  the  demurrer  will  be  sustained  only  where  the  answer  pre- 
sents defects  so  substantial  as  to  authorize  the  court  to  say  that,  taking  all 
the  facts  to  be  admitted,  they  constitute  no  defense  to  the  action  stated  in  the 
petition.  Smith- Wogan  Hardware  &  Implement  Co.  v.  Jos.  W.  Moon  Buggy 
Co.,  108  P.  1103,  26  Okl.  161. 

29  Westervelt  v.  Jones,  47  P.  322,-  5  Kan.  App.  35. 

30  Kimmell  v.  Powers,  91  P.  687,  19  Okl.  339. 

While  an  action  improperly  brought  for  specific  performance  may  be  retain- 
ed to  render  damages  for  breach  of  contract,  yet  if  the  petition,  after  repeat- 
ed amendments,  neither  states  a  cause  of  action  for  specific  performance,  nor 
for  breach  of  contract  a  general  demurrer  should  be  sustained.  Schilling  v. 
Moore,  125  P.  487,  34  Okl.  155. 

31  Garten  v.  Trobridge,  104  P.  1067,  80  Kan.  720. 

HON.PL.&  PBAC.— 39  (609) 


§    709  PLEADINGS  (Ch.  11 

by  reason  of  plaintiff's  laches,32  but  should  be  overruled  where  the 
petition  states  facts  constituting  a  cause  of  action  and  is  sufficiently 
definite  to  put  defendant  on  notice  of  what  he  is  charged  with,33 
though  the  relief  prayed  for  is  not  that  to  which  the  facts  entitle  the 
plaintiff,34  and  though  the  petition  seeks  to  recover  more  relief 
than  that  to  which  plaintiff  is  entitled.33 

Where  no  motion  to  make  more  definite  has  been  presented,  the 
demurrer  should  be  overruled  if  the  facts  stated,  when  all  are  taken 
as  true,  constitute  a  cause  of  action,  whether  well  pleaded  or  not.36 

32  City  of  Leavenworth  v.  Douglass,  53  P.  123,  59  Kan.  416. 

ss  Incorporated  Town  of  Stigler  v.  Wiley,  128  P.  118,  36  Okl.  291. 

It  is  not  error  to  overrule  demurrer  where  allegations  of  petition  construed 
most  favorably  to  pleader  set  up  cause  of  action.  Henry  v.  Gulf  Coast  Drill- 
ing Co.,  56  Okl.  604,  156  P.  321. 

Though  petition  in  action  to  recover  on  contractor's  surety  bond,  which 
plainly  alleged  that  a  stated  balance  was  due,  contained  obvious  clerical  er- 
ror as  to  amount  already  paid,  whereby  it  might  be  asserted  that  no  balance 
was  due,  it  is  not  subject  to  demurrer.  Sheahan  v.  United  States  Fidelity  & 
Guaranty  Co.,  163  P.  172,  99  Kan.  704. 

Where  a  pleading  states  any  facts  upon  which  the  pleader  is  entitled  to  any 
relief  under  the  law,  a  general  demurrer  should  not  be  sustained.  Bishop- 
Babcock-Becker  Co.  v.  Estes  Drug  Co.,  63  Okl.  117,  163  P.  276;  C.  E,  Sharp 
Lumber  Co.  v.  Kansas  Ice  Co.,  142  P.  1016,  42  Okl.  689. 

Where  pleading  contains  more  than  one  paragraph  alleging  more  than  one 
cause  of  action  or  defense  and  states  one  cause  of  action  or  defense,  it  is  er- 
ror to  sustain  general  demurrer  to  it  as  entirety.  Zebold  v.  Hurst  (Okl.)  166 
P.  99,  L.  R.  A.  1917F,  579. 

Where  a  pleading  consists  of  more  than  one  count,  each  count  must,  as 
against  a  general  demurrer  be  considered  as  if  constituting  the  entire  pleading. 
Riverside  Tp.  v.  Bailey,  82  Kan.  429,  108  P.  796. 

s*  Anderson  v.  Muhr,  128  P.  296,  36  Okl.  184. 

Where  the  relief  prayed  for  is  for  a  money  judgment,  and  plaintiff  does  not 
state  the  amount  for  which  she  asked  judgment,  as  required  by  Wilson's  Rev. 
&  Ann.  St.  1903,  §  4291,  such  failure  does  not  alone  render  the  petition  so  in- 
sufficient as  to  render  it  subject  to  demurrer  on  the  ground  that  it  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action.  Oklahoma  Gas  &  Electric 
Co.  v.  Lukert,  84  P.  1076,  16  Okl.  397. 

A  petition,  alleging  that  plaintiff  purchased  land  from  defendants  relying 
on  their  willfully  false  statements  that  they  had  an  absolute  title  when  in  fact 
they  had  less  than  a  full  title,  held  good  on  demurrer,  though  rescission  was 
not  in  terms  asked  for,  and  no  formal  offer  to  reconvey  was  made,  and  the 
facts  were  not  pleaded  by  which  damages  recoverable  could  be  accurately 
measured.  Klingman  v.  Gilbert,  135  P.  682,  90  Kan.  545. 

so  Updegraff  v.  Lucas,  93  P.  630,  76  Kan.  456,  13  Ann.  Gas.  860,  rehearing 
denied  94  P.  121,  76  Kan.  456,  13  Ann.  Cas.  860 ;  Walker  v.  Fleming,  14  P.  470, 
37  Kan.  171. 

se  Bowersox  v.  J.  W.  Hall  &  Co.,  84  P.  557,  73  Kan.  99. 

Where  the  language  of  a  petition  is  sufficiently  explicit  to  raise  an  issue  of 

(610) 


Art.  11)  DEMURRER  §  709 

A  general  demurrer  to  a  petition,  which  attempts  to  state  several 
causes  of  action,  should  be  overruled  if  any  of  the  statements  of 
causes  of  action  are  good,37  though  such  facts  may  not  entitle 
plaintiff  to  the  entire  relief  prayed  for.38 

Where  a  petition  states  a  valid  cause  of  action  as  to  a  part  of  the 
relief  demanded,  a  judgment  sustaining  a  demurrer  generally  is  er- 
roneous.39 

A  joint  general  demurrer  should  be  overruled  where  the  petition 
states  a  cause  of  action  against  any  party  joining  in  the  demurrer.40 

Where  a  petition  of  two  plaintiffs  states  a  cause  of  action  as  to 
but  one  of  them,  it  is  proper  practice  to  overrule  a  general  demurrer 
thereto  as  to  him,  and  sustain  it  as  to  the  other  plaintiff.41 

Where  a  pleader  alleges  two  different  rights  of  recovery  and  the 
question  is  whether  either  of  said  remedies  is  proper,  a  general  de- 
murrer should  be  overruled  if  facts  are  alleged  sufficient  to  consti- 
tute a  cause  of  action  for  either  remedy,42 

When  the  separate  paragraphs  of  a  petition  sufficiently  state  a 
cause  of  action  for  debt  and  mortgage  foreclosure,  a  general  demur- 
rer to  each  of  such  paragraphs  should  be  overruled,  though  plain- 
tiff also  asks  for  an  attorney's  fee,  which  is  not  recoverable.43 

A  petition  in  action  for  money  had  and  received  is  not  subject 
to  general  demurrer  for  failure  to  allege  what  specific  use  was  made 
of  money.44 

fact  on  which  the  pleader  would  be  entitled  to  recover,  it  is  error  to  sustain 
a  general  demurrer.    Berry  v.  Geiser  Mfg.  Co.,  85  P.  699,  15  Okl.  364. 

37  Emmerson  v.  Botkin,  109  P.  531,  26  Okl.  218,  29  L.  R.  A.  (N.  S.)  786,  138 
Am.  St.  Rep.  953 ;   Hanenkratt  v.  Hamil,  61  P.  1050,  10  Okl.  219 ;   Blackwell 
Oil  &  Gas  Co.  v.  Whitesides  (Okl.)  174  P.  573;   Chupco  v.  Chapman  (Okl.)  160 
P.  88;    Coody  v.  Coody,  136  P.  754,  39  Okl.  719,  L.  R.  A.  1915E,  465;   Cockrell 
v.  Schmitt,  94  P.  521,  20  Okl.  207,  129  Am.  St.  Rep.  737 ;   Ardmore  State  Bank 
v.  Mason,  30  Okl.  568,  120  P.  1080,  39  L.  R.  A.  (N.  S.)  292. 

38  Watkins  v.  Yell  (Okl.)  176  P.  390. 

3»  St.  Louis  &  S.  F.  R.  Co.  v.  Commissioners  of  Labette  County,  63  Kan.  889, 
66  P.  1045. 

Where  petition  states  a  good  cause  of  action  for  foreclosure  of  a  mechanic's 
lien,  and  seeks  to  recover  $40  attorney's  fees,  the  allegation  as  to  the  attor- 

40  Rogers'  Milling  Co.  v.  Goff,  Gamble  &  Wright  Co.,  46  Okl.  339,  148  P.  1029. 

41  Bissey  v.  Marion  (Kan.)  178  P.  991. 

42  Gourley  v.  Lookabaugh,  48  Okl.  65,  149  P.  1169. 

43  Hailey  v.  Bowman,  137  P.  722,  41  Okl.  294. 

44  Cleveland  Nat.  Bank  v.  Board  of  Education  of  City  of  Cleveland  (Okl.) 
179  P.  464. 

(611) 


§§  709-710  PLEADINGS  (Ch.  11 

A  misjoinder  of  causes  of  action  can  only  be  reached  by  special 
demurrer  setting  forth  distinctly  the  grounds  of  objection,  and  can- 
not be  met  by  general  demurrer.45 

An  oral  demurrer  should  be  considered  as  a  general  demurrer 
only,  and  be  overruled,  where  the  pleading  attacked  states  a  cause 
of  action  entitling  the  pleader  to  any  relief.46 

§  710.     Limitations 

Where  petition  on  its  face  shows  that  cause  of  action  is  barred 
by  limitations,  a  general  demurrer  thereto  is  properly  sustained, 
unless  facts  as  pleaded  in  the  petition  show  that  the  statute  has  been 
tolled.47 


ney's  fees,  none  being  allowed,  will  not  render  the  petition  so  defective  that 
the  matter  may  be  reached  by  general  demurrer  to  the  whole  petition.  Savage 
v.  Dinkier,  72  P.  366,  12  Okl.  463. 

45  State  Exch.  Bank  of  Elk  City  v.  National  Bank  of  Commerce  (Okl.)  174 
P.  796,  2  A.  L.  R.  211;   Same  v.  Traders'  Nat.  Bank  of  Kansas  City,  Mo.  (Okl.) 
174  P.  799. 

A  general  demurrer  does  not  go  to  a  misjoinder  of  causes  of  action,  under 
Rev.  Laws  1910,  §  4740,  subsec.  5,  and  in  order  to  attack  a  misjoinder  of 
causes  of  action  a  demurrer  for  such  misjoinder  must  be  interposed.  Hart- 
Parr  Co.  v.  Thomas  (Okl.)  171  P.  867. 

46  United  States  Fidelity  &  Guaranty  Co.  v.  Fidelity  Trust  Co.,  49  Okl.  398, 
153  P.  195. 

47  Delzell  v.  Couch  (Okl.)  173  P.  361;    Missouri,  K.  &  T.  Ry.  Co.  v.  Wilcox, 
121  P.  656,  32  Okl.  51 ;    Territory  v.  Woolsey,  130  P.  934,  35  Okl.  545;    Ostran 
v.  Bond  (Okl.)  172  P.  447;    Webb  v.  Logan,  48  Okl.  354,  150  P.  116;    Fox  v. 
Ziehme,  30  Okl.  673,  120  P.  285 ;   Froage  v.  Webb  (Okl.)  165  P.  150.    Where  pe- 
tition in  action  for  breach  of  oral  contract  showed  that  cause  of  action  ac- 
crued more  than  three  years  before  commencement  of  action,  and  did  not  al- 
lege any  written  acknowledgment  of  existing  liability  within  limitations,  over- 
ruling of  demurrer  thereto  was  error.    Id. 

The  defense  of  the  statute  of  limitations  may  be  availed  of  by  general  de- 
murrer, or  by  an  objection  to  testimony  under  the  petition.  Martin  v.  Gassert, 
139  P.  1141,  40  Okl.  608.  A  petition,  showing  on  its  face  that  a  fraud  on  which 
the  cause  of  action  was  founded  was  consummated  more  than  two  years  be- 
fore action  brought  is  demurrable,  where  it  does  not  show  that  plaintiff  did 
not  discover  the  fraud  until  within  the  two  years.  Id. 

Only  an  explicit  allegation,  showing  that  limitations  have  run,  renders  a 
petition  demurrable.  Wray  v.  Howard,  79  Okl.  223,  192  P.  584. 

Kansas  cases.— The  defense  of  limitations  cannot  be  raised  by  demurrer,  un- 
less it  distinctly  appears  on  the  face  of  the  petition  that  the  action  is  neces- 
sarily barred.  Walker  v.  Fleming,  14  P.  470,  37  Kan.  171. 

The  objection  that  a  cause  of  action  is  barred  by  limitations  cannot  be  taken 
by  demurrer,  unless  the  petition  shows  on  its  face  that  the  cause  of  action  is 

(612) 


Art.  11)  DEMURRER  §§  710-713 

But  where  the  petition  on  its  face  does  not  show  that  the  cause  of 
action  is  barred  by  limitations,  a  demurrer  thereto  on  that  ground 
should  be  overruled.48 

§  711.    Objection  to  introduction  of  any  evidence  as  alter- 
native 

Defendant  may  demur  to  a  petition  for  not  stating  facts  sufficient 
to  constitute  a  cause  for  action,  or  may  question  its  sufficiency  by 
objection  to  the  introduction  of  evidence.49 

§  712.     Demurrer  and  answer 

"The  defendant  may  demur  to  one  or  more  of  the  several  causes 
of  action  stated  in  the  petition,  and  answer  to  the  residue."  50 

§  713.    Where  single  count 

Where  a  demurrer  and  an  answer  are  filed  at  the  same  time,  and 
the  petition  contains  but  one  count,  the  answer  will  be  held  to  have 

so  barred.  Garfield  Tp.,  Finney  County,  v.  Dodsworth,  9  Kan.  App.  752,  58  P. 
565. 

A  demurrer  should  be  sustained  where  the  complaint  shows  on  its  face  that 
the  action  is  barred.  Morgan  v.  Van  Wyck,  5  Kan.  App.  520,  48  P.  206;  City 
of  Phillipsburg  v.  Kincaid,  50  P.  1093,  6  Kan.  App.  377 ;  Hunt  v.  Jetmore,  61 
P.  325,  9  Kan.  App.  333. 

A  petition  held  demurrable  where  it  appeared  that  the  action  was  barred 
under  the  statute  of  Kansas  and  no  other  statute  was  pleaded.  Perry  v.  Rob- 
ertson, 150  P.  223,  93  Kan.  703,  96  Kan.  96.  A  petition  on  a  written  contract 
maturing  more  than  five  years  before  action  is  demurrable,  unless  it  shows 
some  fact  interrupting  the  running  of  limitations.  Id. 

Limitation  is  a  matter  of  defense,  and  only  explicit  allegations  showing  di- 
rectly that  limitations  have  run  renders  a  petition  demurrable;  the  question 
otherwise  being  raised  by  special  plea.  Brunbaugh  v.  Wilson,  82  Kan.  53,  107 
P.  792. 

Where  the  exhibits  attached  to  a  petition  show  upon  their  face  that  the 
cause  of  action  set  out  therein  is  barred  by  the  statute  of  limitations,  and  there 
are  no  allegations  in  the  petition  showing  that  the  cause  of  action  is  not  so 
barred,  held,  that  a  demurrer  to  such  a  petition  should  be  sustained.  School 
Dist.  No.  1  v.  Herr,  50  P.  101,  6  Kan.  App.  861. 

48  Tucker  v.  Hudson,  38  Okl.  790,  134  P.  21 ;  Lindsay  v.  Chicago,  R.  I.  &  P. 
Ry.  Co.,  56  Okl.  234,  155  P.  1173;  United  States  Fidelity  &  Guaranty  Co.  v. 
Fidelity  Trust  Co.,  49  Okl.  398,  153  P.  195. 

4»  Brown  v.  Galena  Mining  &  Smelting  Co.,  4  P.  1013,  32  Kan.  528. 

In  action  for  breach  of  contract,  failure  to  allege  performance  on  plaintiff's 
part  presented  only  by  objection  to  evidence  and  not  by  demurrer  held  imma- 
terial. Capper  v.  Manufacturers'  Paper  Co.,  121  P.  519,  86  Kan.  355. 

so  Rev.  Laws  1910,  §  4744. 

(613) 


§§  714-715  PLEADINGS  (Ch.  11 

superseded  the  demurrer,  and  the  trial  should  proceed  as  though 
none  had  been  filed.51 

§  714.     Joint  demurrer 

A  complaint  which  states  a  cause  of  action  against  one  of  several 
defendants  is  good  against  a  joint  demurrer.52 

§  715.     Demurrer  to  answer 

It  is  error  to  sustain  a  general  demurrer  to  an  answer  which  in- 
cludes a  general  denial  of  the  averments  of  the  petition.  The  de- 
murrer should  be  overruled  as  to  that  averment.53  But  the  demur- 
rer may  be  sustained  where  the  answer  contains  averments  in- 
consistent with  the  general  denial.54  A  demurrer  will  not  lie  for 
surplusage  or  generalities.55 

A  general  demurrer  to  an  answer  should  be  overruled,  where  the 
answer  raises  any  issue  necessary  to  be  determined  before  judgment 
can  be  rendered  on  the  petition,56  and  where  the  answer  contains 
several  paragraphs  or  defenses,  one  of  which  is  good.57 

si  Ryndak  v.  Sea  well,  76  P.  170,  13  Okl.  737. 

Where  a  pleading  styled  an  answer  contained  a  demurrer,  coupled  with 
facts  constituting  a  defense,  and  thereafter  a  general  denial  by  way  of  a  re- 
ply was  filed,  it  was  not  error  to  disregard  the  demurrer,  and  require  a  trial 
on  the  merits.  Title  Guaranty  &  Surety  Co.  v.  Slinker,  128  P.  696,  35  Okl.  128; 
Id.,  128  P.  698,  35  Okl.  153. 

52  Stiles  v.  City  of  Guthrie.  3  Okl.  26,  41  P.  383. 

53  City  of  Guthrie  v.  T.  W.  Harvey  Lumber  Co.,  50  P.  84,  5  Okl.  774. 

An  answer  containing  a  general  denial  modified  by  admissions,  but  not  ad- 
mitting all  facts  necessary  to  entitle  plaintiff  to  recover,  is  good  as  against  de- 
murrer. Rust  v.  Rutherford,  147  P.  805,  95  Kan.  152. 

A  general  demurrer  to  an  answer  containing  a  general  denial  cannot  be 
sustained.  Marshall  Mfg.  Co.  v.  Dickerson,  55  Okl.  188,  155  P.  224.  An  an- 
swer containing  a  general  denial  and  also  a  negative  pregnant  constituting 
admission  of  liability  by  defendant,  though  subject  to  motion  for  judgment 
on  the  pleadings,  is  not  subject  to  a  general  demurrer.  Id. 

Where  facts  pleaded  in  a  paragraph  of  an  answer  are  admissible  under  a 
general  denial  pleaded,  it  is  not  error  to  sustain  a  demurrer  to  such  para- 
graph. Hopkins  v.  Dipert,  69  P.  883,  11  Okl.  630. 

s*  Adkins  v.  Arnold,  121  P.  186,  32  Okl.  167. 

55  A  demurrer  to  an  answer,  in  that  the  second  clause  of  the  first  paragraph 
was  not  responsive  to  an  allegation  in  the  petition,  that  the  third  clause  was 
evasive,  and  that  another  paragraph  stated  conclusions  of  law,  and  was  not 
responsive  to  the  allegations  of  the  petition,  was  insufficient.     Galbreath  Gas 
Co.  v.  Lindsey,  129  P.  45,  35  Okl.  235. 

56  Simpson  v.  Collins,  62  P.  719,  10  Kan.  App.  578. 

Where  an  answer  denies  a  material  fact  in  the  petition  essential  to  plain- 
s' See  note  57  on  following  page. 
(614) 


Art.  11)  DEMURRER  §§  715-718 

A  pleading  containing  a  general  denial  and  also  a  general  demur- 
rer will  be  treated  as  an  answer,  and  the  demurrer  will  be  con- 
sidered waived.58  , 

§  716.    To  amended  answer 

Where  an  amended  answer  measurably  complies  in  particulars 
required,  with  an  order  to  make  the  original  more  definite  and  cer- 
tain, it  is  error  to  sustain  a  motion  to  strike  it  from  the  files,  though 
it  may  not  state  facts  sufficient  to  constitute  a  defense;  but  a  de- 
murrer, so  an  amendment  can  be  allowed,  is  proper.59 

§  717.    To  set-off  or  counterclaim 

A  set-off  or  counterclaim,  to  withstand  a  demurrer  for  want  of 
facts,  must,  like  any  other  complaint,  state  facts  sufficient  to  consti- 
tute a  cause  of  action.60 

§  718.     Demurrer  to  reply 

"If  the  reply  to  any  defense  set  up  by  the  answer  be  insufficient, 
the  defendant  may  demur  thereto,  stating  the  grounds  of  such  de- 


murrer." ' 

To  a  reply  containing  a  general  denial  and  new  matter,  a  demur- 
tiffs'  right  of  recovery,  it  is  error  to  sustain  a  demurrer  to  such  answer  on 
the  ground  that  it  does  not  state  a  defense.  Lee  v.  Mehew,  56  P.  1046,  8  Okl. 
136.  , 

Where  an  answer  states  facts  constituting  a  defense  in  themselves,  the  sus- 
taining of  a  general  demurrer  thereto  is  error.  Gillum  v.  Anglin,  44  Okl.  684, 
145  P.  1145. 

67  A  demurrer  to  an  answer  containing  several  paragraphs  must  be  over- 
ruled, if  there  is  one  good  paragraph.  Hurst  v.  Sawyer,  37  P.  817,  2  Okl.  470. 

A  general  demurrer  to  an  answer  containing  several  defenses  should  be  over- 
ruled, where  any  defense  by  itself,  or  the  answer  as  a  whole,  states  matters 
which  defeat  plaintiff's  right  to  recover.  Rust  v.  Rutherford,  147  P.  805,  95 
Kan.  152;  Mollohan  v.  King,  50  P.  881,  58  Kan.  816;  Harrill  v.  Weer,  109  P. 
539,  26  Okl.  313 ;  Flint  v.  Dulany,  15  P.  208,  37  Kan.  332. 

ss  State  Exch.  Bank  v.  National  Bank  of  Commerce  (Okl.)  174  P.  796,  2  A. 
L.  R.  211;  Same  v.  Traders'  Nat.  Bank  (Okl.)  174  P.  799. 

sa  McNinch  v.  Northwest  Thresher  Co.,  100  P.  524,  23  Okl.  386,  138  Am.  St. 
Rep.  803. 

eo  In  action  on  note,  answer  of  defendant  indorsers  held,  as  against  a  de- 
murrer, to  sufficiently  plead  a  set-off  based  upon  alleged  fraud  practiced  upon 
them  by  plaintiff  holder  and  defendant  maker  of  the  note.  Blair  v.  McQuary, 
164  P.  262,  100  Kan.  203,  modifying  judgment  on  rehearing  162  P.  1173,  100 
Kan.  203. 

el  Rev.  Laws  1910,  §  4754. 

(615) 


§§  719-720  PLEADINGS  (Ch.  11 

rer  for  want  of  facts  is  bad  if  not  addressed  especially  to  the  new 
matter.62 

§  719.     Demurrer  relating  back 

A  demurrer  to  an  answer  or  reply  searches  the  record.63  A  de- 
murrer to  a  petition  because  not  stating  a  cause  of  action  can  be  sus- 
tained only  where  court  can  say  that,  taking  all  the  facts  to  be 
admitted,  they  furnish  no  cause  of  action,  and,  if  facts  stated 
therein  entitle  plaintiff  to  any  relief,  a  demurrer  for  want  of  facts 
should  be  overruled ; 6*  and  where  there  is  a  general  demurrer  to 
defenses  of  an  answer  and  the  petition  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action,  a  demurrer  should  be  sustain- 
ed to  the  petition.66 

However,  where  a  petition  is  defective  for  want  of  a  material 
averment,  but  such  averment  is  supplied  by  the  answer  and  is  not 
inconsistent  with  the  averments  of  the  petition,  a  demurrer  filed 
to  the  answer  and  properly  overruled  will  not  be  carried  back  and 
sustained  as  to  the  petition^6 

§  720.     Construction  of  pleading  demurred  to 

On  demurrer  a  petition  is  liberally  construed.67  It  must  be  con- 
strued with  exhibits  attached.68 

62  Ordway  v.  Cowles,  25  P.  862,  45  Kan.  447. 

63  In  action  on  note,  where  answer  alleged  that  it  was  given  in  connection 
with  written  contract  in  settlement  of  controversy  between  parties,  and  by 
the  terms  thereof  it  never  became  payable,  held  that  demurrer  to  plaintiff's 
reply  to  answer  should  have  been  carried  back  to  answer  and  sustained  there- 
to, and  judgment  rendered  for  plaintiff.    Rohrbaugh  v.  Cunningham,  101  Kan. 
284,  166  P.  471. 

04  Oklahoma  Sash  &  Door  Co.  v.  American  Bonding  Co.  (Okl.)  170  P.  511. 

es  Bartholomew  v.  Guthrie,  81  P.  491,  71  Kan.  705. 

A  demurrer  to  an  answer  brings  up  the  sufficiency  of  the  complaint.  John- 
son v.  Wynne,  67  P.  549,  64  Kan.  138 ;  Crow  v.  Hardridge  (Okl.)  175  P.  115. 

A  demurrer  to  an  answer  may  be  carried  back  to  a  petition,  though  a  pre- 
vious demurrer  to  the  petition  has  been  overruled.  Marney  v.  Joseph,  145  P. 
822,  94  Kan.  18,  Ann.  Gas.  1917B,  225. 

66  Sill  v.  Sill,  1  P.  556,  31  Kan.  248. 

67  Jackson  v.  Moore,  79  Okl.  59,  191  P.  590. 

es  Southern  Surety  Co.  v.  Municipal  Excavator  Co.,  61  Okl.  215,  160  P.  617, 
L.  R.  A.  1917B,  558:  Pettis  v.  Johnston,  78  Okl.  277,  190  P.  681;  Hughes  v. 
Martin  (Okl.)  196  P.  951. 

Where  the  instrument  sued  on  is  attached  by  copy  to  the  petition  and  made 
a  part  thereof,  it  should  be  made  a  part  of  the  petition  when  constructing  the 
allegations  thereof  as  against  a  general  demurrer.    Whiteacre  v.  Nichols,  87  P. 
865,  17  Okl.  387. 
(616) 


Art.  11)  DEMURRER  §§  720-721 

In  replevin,  the  affidavit  and  bond  for  the  ancillary  order  are  not 
construed  as  parts  of  the  pleadings,  to  determine  whether  a  cause 
of  action  has  been  stated.60 

On  demurrer  to  improperly  commingled  paragraphs  of  a  peti- 
tion, the  entire  petition  will  be  considered,  and  not  merely  the 
subdivisions  attacked.70 

In  considering  demurrers  to  separate  causes  of  action,  the  court 
is  not  confined  to  allegations  in  a  particular  subdivision,  but  may 
supplement  them  with  general  allegations  applicable  alike  to  the 
different  causes,  though  this  could  not  be  done  if  separate  causes 
are  separately  stated  and  numbered,  except  where  allegations  are 
incorporated  by  reference.71 

Facts  not  shown  by  the  pleadings  cannot  be  inquired  into  in  de- 
termining sufficiency  of  a  pleading  on  demurrer.72 

§  721.     Ruling,  order,  and  judgment 

In  sustaining  a  demurrer  to  a  petition  for  misjoinder  of  causes  of 
action,  the  court  should  so  state,  and  afford  plaintiff  an  oppor- 
tunity to  file  several  petitions.73  But  where  a  demurrer  to  a  peti- 
tion is  sustained,  and  plaintiff  fails  to  file  an  amended  pleading  as 
permitted  by  the  order,  a  judgment  dismissing  his  cause  of  action 
is  proper.74 

It  is  error  for  the  court  to  render  judgment  by  default  on  sus- 
taining a  demurrer  to  the  answer,  in  the  absence  of  defendant  or  his 
counsel,  without  giving  defendant  an  opportunity  to  plead  over  or 
elect  to  stand  on  the  demurrer.75 


so  Cudd  v.  Farmers'  Exch.  Bank  of  Lindsay,  76  Okl.  317,  185  P.  521. 

70  First  Nat.  Bank  of  Tishomingo  v.  Ingle,  132  P.  895,  37  Okl.  276. 

71  Cliupco  v.  Chapman  (Okl.)  160  P..  88. 

Where  a  pleading  consists  of  more  than  one  count,  neither  the  facts  involv- 
ed in  the  action  nor  the  averments  of  another  count,  unless  incorporated  into 
the  pleading  demurred  to,  can  be  considered  on  a  hearing  on  the  demurrer. 
Riverside  Tp.  v.  Bailey,  82  Kan.  429,  108  P.  796. 

72  Where,  in  an  action  by  F.  against  D.,  charging  that  certain  covenants 
contained  in  a  deed  by  D.  to  F.  were  broken,  neither  the  petition  nor  the  ^x- 
hibits  connect  D.  with  the  title  of  the  original  grantor,  W.,  on  demurrer  the 
court  cannot  properly  determine  the  question  of  W.'s  right  to  alienate.     Fal- 
ler  v.  Davis,  30  Okl.  56,  118  P.  382,  Ann.  Gas.  1913B,  1181. 

>"•  Wlutley  v.  St.  Louis,  E.  R.  &  W.  Ry.  Co.,  116  P.  165,  29  Okl.  63;  Rev. 
Laws  1910,  §  4743. 

74  Gates  v.  Miles  (Okl.)  169  P.  888;   State  v.  Martin,  62  Okl.  295,  162  P.  108&. 

75  Thwing  v.  Doye,  44  P.  381,  2  Okl.  608. 

(617) 


§    721  PLEADINGS  (Ch.  11 

Where  an  answer  in  an  action  on  an  official  bond  contains  a 
general  denial,  and  the  plaintiff  elects  to  stand  on  a  demurrer, 
which  is  overruled,  to  two  other  paragraphs  of  the  answer,  which 
state  a  good  defense,  and  nothing  further  is  offered  by  the  plaintiff, 
it  is  not  error  for  the  court  to  dismiss  the  cause.76 

An  order  of  the  court  overruling  defendant's  demurrer  to  the 
petition  on  the  ground  that  it  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action  is  not  a  final  adjudication  in  plaintiff's 
favor,  so  as  to  prevent  defendant,  at  the  trial,  from  again  attacking 
the  sufficiency  of  the  petition  by  an  objection  to  the  reception  of 
any  evidence  thereunder.77 

The  court,  by  erroneously  overruling  a  demurrer  to  the  reply, 
is  not  precluded  from  correctly  deciding  a  motion  for  judgment  on 
the  pleadings.78 

An  application  for  leave  to  answer  after  a  demurrer  has  been 
adjudged  frivolous  rests  largely  within  the  trial  court's  reasonable 
discretion,  and  should  be  granted  except  in  extreme  cases.79 

Where  a  demurrer  to  an  answer  is  sustained,  and  defendant 
stands  on  his  exception  thereto,  and  judgment  is  rendered  against 
him,  and  he  takes  additional  time  to  prepare  a  case  for  appeal,  and 
when,  after  the  term  has  expired,  he  files  a  motion  to  set  aside  the 
judgment  and  be  allowed  to  amend,  the  motion  cannot  be  con- 
sidered.80 

It  is  error  for  a  trial  court  to  render  a  judgment  sustaining  a  plea 
in  abatement,  without  giving  plaintiff  an  opportunity  to  plead  there- 
to, where  it  cannot  be  said  from  the  record  that  he  elected  to  stand 
on  his  demurrer  to  the  plea  or  refused  to  plead  further.81 

A  judgment  sustaining  a  demurrer  to  a  petition  from  which  no 

76  Board  of  Com'rs  of  Logan  County  v.  Harvey,  52  P.  402,  6  Okl.  629. 

77  Goodrich  v.  Commissioners  of  Atchison  County,  47  Kan.  355,  27  P.  1006, 
18  L.  B.  A.  113. 

78  Sherburne  v.  Strawn,  34  P.  405,  52  Kan.  39. 

7»  Nolen  v.  State,  48  Okl.  594,  150  P.  149;  Jones  v.  Same,  48  Okl.  601,  150 
P.  151. 

A  "frivolous  pleading''  is  one  so  clearly  untenable  or  the  insufficiency  of 
which  is  so  manifest  upon  a  bare  inspection  of  the  pleading  that  the  court  or 
judge  is  able  to  determine  its  character  without  argument  or  research.  Nolen 
v.  State,  48  Okl.  594,  150  P.  149 ;  Jones  v.  Same.  48  Okl.  601,  150  P.  151. 

so  Davidson  v.  Hughes,  91  P.  913.  76  Kan.  247;   Id.,  91  P.  915,  77  Kan.  842. 

si  Nation  v.  Savely  (Okl.)  176  P.  937. 

(618) 


Art.  12)  ISSUES,  PROOF,  AND    VARIANCE  §§    722~724 

appeal  is  taken  does  not  control  the  judgment  on  hearing  of  a  de- 
murrer against  an  amended  petition  afterwards  filed  by  leave  of 
court.82 

ARTICLE  XII 

ISSUES,  PROOF,  AND  VARIANCE 
DIVISION    I.— ISSUES 

Sections 

722.  Kinds. 

723.  Of  law. 

724.  Of  fact. 

725.  Where  both  issues  arise. 

726.  Allegations  deemed  true. 

727.  Admissions. 

728.  Material  allegation. 

DIVISION  II.— PBOOF 

729.  Proof   required   under   certain   pleadings — Verified   denial. 

730.  Proof  admissible  under  pleadings. 

731.  Under  general  denial. 

732.  When  evidence  admissible  of  facts  not  pleaded. 

DIVISION  III. — VABIANCE 

733.  Rules  and  application. 

DIVISION  I. — Issues 
§  722.     Kinds 

"Issues  arise  on  the  pleadings,  where  a  fact  or  conclusion  of  law 
is  maintained  by  one  party,  and  controverted  by  the  other.  There 
are  two  kinds :  First,  Of  law.  Second,  Of  fact."  83 

§  723.     Of  law 

"An  issue  of  law  arises  upon  a  demurrer  to  the  petition,  answer 
or  reply,  or  to  some  part  thereof."  8* 

§  724.     Of  fact 

"An  issue  of  fact  arises :  First,  upon  a  material  allegation  in  the 
petition,  controverted  by  the  answer ;  or,  second,  upon  new  matter 
in  the  answer,  controverted  b/y  the  reply ;  or,  third,  upon  new  mat- 

S2  Parks  v.  Monroe,  161  P.  638,  99  Kan.  368. 

ss  Rev.  Laws  1910,  §  49S9 ;  General  Electric  Co.-v.  Sapulpa  &  I.  Ry.  Co.,  4& 
Okl.  376,  153  P.  189;  United  States  Fidelity  &  Guaranty  Co.  v.  Fidelity 
Trust  Co.,  49  Okl.  398,  153  P.  195. 

s*  Rev.  Laws  1910,  §  4990. 

(619) 


§§  725-726  PLEADINGS  ,Ch.ll 

ter  in  the  reply,  which  shall  be  considered  as  controverted  by  the 
defendant  without  further  pleading."  85 

§  725.     Where  both  issues  arise 

Issues  both  of  law  and  fact,  may  arise  upon  different  parts  of 
the  pleadings  in  the  same  action.  In  such  cases  the  issues  of  law 
must  be  first  tried,  unless  the  court  otherwise  direct."  86 

§  726.     Allegations  deemed  true 

"Every  material  allegation  of  the  petition,  not  controverted  by 
^  the  answer,  and  every  material  allegation  of  new  matter  in  the 
answer,  not  controverted  by  the  reply,  shall,  for  the  purposes  of 
the  action,  be  taken  as  true ;  but  the  allegation  of  new  matter  in  the 
reply  shall  be  deemed  to  be  controverted  by  the  adverse  party,  as 
upon  direct  denial  or  avoidance,  as  the  case  may  require.  A  de- 
murrer to  a  reply  shall  not  be  held  to  admit  any  of  the  facts  al- 
leged in  such  reply  for  any  purpose  other  than  to  determine  the 
sufficiency  thereof.  Allegations  of  value,  or  of  amount  of  damages, 
shall  not  be  considered  as  true,  by  failure  to  controvert  them ;  but 
this  shall  not  apply  to  the  amount  fclaimed  in  action  on  contract, 
express  or  implied,  for  the  recovery  of  money  only."  87 

as  Rev.  Laws  1910,  §  4991. 

se  Rev.  Laws  1910,  §  4992. 

87  Rev.  Laws  1910,  §  4779. 

Under  Rev.  Laws  1910,  §  4779,  allegations  of  value  or  amount  of  damages 
in  a  petition  are  not  admitted  as  true  by  a  failure  to  controvert  them.  Cudd 
v.  Farmers'  Exch.  Bank  of  Lindsay,  76  Okl.  317,  185  P.  521. 

Where,  prior  to  the  admission  of  the  state  into  the  Union,  in  replevin  to 
recover  certain  personalty,  in  which  plaintiffs  claimed  a  special  ownership 
under  chattel  mortgages,  there  was  a  nouverified  answer  with  allegations 
that  plaintiffs  were  a  partnership  and  were  transacting  business  under  a  fic- 
titious name,  a  reply  was  necessary,  and,  none  being  filed,  the  material  alle- 
gations of  the  new  matter  in  the  answer  uncontroverted  should  be  taken  as 
true  and  constitute  a  complete  defense.  Baker  v.  L.  C.  Van  Ness  &  Co.,  105 
P.  660,  25  Okl.  34. 

Where  plaintiff  founds  his  claim  to  property  on  a  certain  note  and  chattel 
mortgage,  and  sets  forth  a  copy  of  them  in  his  original  pleadings,  and  makes 
them  a  part  thereof,  and  defendant  does  not  deny  their  execution  by  affidavit, 
it  is  not  necessary  for  plaintiff  to  prove  that  the  note  was  unpaid.  Hardwick 
v.  Atkinson,  58  P.  747,  8  Okl.  608. 

(620) 


Art.  12)'  ISSUES,  PROOF,  AND  VARIANCE  §§  727-729 

§  727.     Admissions 

Defendant  need  not  prove  matters  admitted  in  the  petition;88 
but  his  act  in  challenging  the  competency  of  one  of  plaintiff's  wit- 
nesses, upon  the  theory  of  the  facts  as  alleged  in  the  petition,  is 
not  such  an  admission  of  the  truthfulness  of  the  petition  as  renders 
proof  unnecessary.89  Likewise  plaintiff  is  relieved  from  proving 
facts  admitted  by  defendant  in  the  answer.90 

§  728.     Material  allegation 

"A  material  allegation,  in  a  pleading,  is  one  essential  to  the  claim 
•or  defense,  which  could  not  be  stricken  from  the  pleading  without 
leaving  it  insufficient."  91 

DIVISION  II. — PROOF 
t 
§  729.     Proof  required  under  certain  pleadings — Verified  denial 

The  issues  raised  by  the  pleadings  determine  the  proof  which 
is  required.92  A  verified  denial,  however,  is  required  to  put  certain 
facts  in  issue.  It  is  necessary  to  put  in  issue  plaintiff's  corporate 

88  Where  the  execution  of  the  deeds  relied  upon  by  the  defendant  in  parti- 
tion is  admitted  in  plaintiff's  pleading,  the  defendant  need  not  introduce  the 
deeds  in  evidence  to  establish  his  interest.  Ryan  v.  Cullen,  133  P.  430,  89 
Kan.  879. 

Where,  in  an  action  to  enjoin  the  collection  of  certain  school  district  taxes, 
plaintiff  admitted  that  the  order  for  the  levy  had  been  made  and  that  the 
county  clerk  had  extended  the  levy,  further  proof  that  the  levy  had  been  or- 
dered was  unnecessary.  St.  Louis  &  S.  F.  Ry.  Co.  v.  Lindsey,  39  Okl.  439, 
135  P.  1053. 

*»  McWilliams  v.  Piper,  53  P.  837,  7  Kan.  App.  289. 

»o  Where  the  answer  admits  execution  of  the  note  sued  upon  and  pleads 
payment  and  set-off,  the  note  need  not  be  put  in  evidence.  Dill  v.  Malot  (Okl.) 
167  P.  219. 

In  an  action  on  an  unindorsed  note,  payable  to  a  third  person,  defendants' 
answer  that  the  note  was  executed  in  consideration  of  a  conveyance  of  lands 
by  plaintiff  admitted  plaintiff's  ownership  of  the  note,  and  no  proof  is  nec- 
essary, though  it  was  denied  by  the  answer.  Choate  v.  Stander,  61  Okl.  148, 
160  P.  737. 

si  Rev.  Laws  1910,  §  4780. 

In  an  action  on  a  negotiable  certificate  of  deposit,  an  unverified  answer  de- 
nying plaintiff's  ownership  of  the  certificate  and  alleging  that  the  deposit  had 
been  withdrawn  by  the  true  owner  presents  an  issue  for  trial.  Wichita  Nat. 
Bank  v.  Maltby,  36  P.  1000,  53  Kan.  567. 

92  Where  the  defense  in  an  action  for  the  publication  of  libelous  articles  is 
that  the  articles  are  true,  plaintiff  is  entitled  to  recover  unless  defendant  es- 
tablishes the  truth  of  every  material  item.  Spencer  v.  Minnick,  139  P.  130, 
41-  Okl.  613. 

(021) 


§    729  PLEADINGS  (Ch.  11 

character,93  or  the  existence  of  an  alleged  partnership,94  or  the  exe- 
cution of  a  written  instrument.95 

Although  several  facts  are  alleged  in  the  petition,  plaintiff  need 
prove  only  such  facts  as  are  essential  to  establish  his  right  to  re- 
cover.96 He  must  prove  all  material  and  necessary  allegations,97 
but  he  need  not  prove  a  conclusion  of  law.98  A  slanderous  state- 
ment need  not  be  proven  precisely  as  charged.99 

An  unnecessary  allegation  need  not  be  proven.  Thus,  whe're  an 
insurance  company  pleads  a  breach  of  condition  against  concur- 

93  Where  defendant  flies  specific  verified  denial  of  plaintiff 's  corporate  char- 
acter, plaintiff  must  prove  such  character.    J.  P.  Bledsoe  &  Son  v.  Keystone 
Steel  &  Wire  Co.,  139  P.  257,  41  Okl.  586. 

94  Where  the  petition  alleges  the  existence  of  a  partnership,  and  the  exe- 
cution of  a  mechanic's  lien,  and  a  verified  answer  is  filed  denying  "each  and 
every  allegation,  averment,  and  statement  contained  in  the  plaintiff's  peti- 
tion," the  existence  of  the  pai'tnership,  and  the  due  execution  of  the  lien,  are 
such  issues  as  must  be  proved  on  the  trial,  to  entitle  the  plaintiff  to  recover. 
Hayner  v.  Eberhardt,  15  P.  168,  37  Kan.  308. 

95  Felix  v.  Walker,  57  P.  128,  60  Kan.  467. 

Where  defendant  alleged  that  he  was  induced  by  fraud  to  sign,  without 
reading  it,  the  contract  sued  on,  and  that  it  did  not  contain  the  real  agree- 
ment, held,  that  evidence  supporting  such  allegations  was  admissible.  George 
O.  Richardson  Machinery  Co.  v.  Duncan,  46  Okl.  21,  148  P.  80. 

96  Where  plaintiff  alleges  several  independent  unconnected  acts  of  negli- 
gence as  ground  for  recovery  and  the  proof  is  sufficient  to  establish  any  of 
such  acts  of  negligence,  he  may  recover.    Dickinson  v.  Tucker  (Okl.)  176  P. 
949. 

That  the  petition,  in  an  action  against  a  railroad  company  for  damages 
from  fire,  unnecessarily  charged  negligence  did  not  require  plaintiff  to  prove 
negligence  in  order  to  recover.  Midland  Valley  R.  Co.  v.  Lynn,  38  Okl.  695, 
135  P.  370. 

In  action  for  carrier's  conversion  of  grain  covered  by  bill  of  lading  held  by 
bank,  where  it  paid  into  court  the  amount  demanded,  and  an  intervener 
claimed  an  interest  in  such  money,  proof  of  value  of  car  was  not  necessary 
as  between  plaintiff  and  intervener.  Marsh  Milling  &  Grain  Co.  v.  Guaranty 
State  Bank  of  Ardmore  (Okl.)  171  P.  1122,  L.  R.  A.  1918D,  704. 

»7  Under  petition  in  action  against  railroad  and  its  engineer  and  fireman, 
alleging  that  the  latter  willfully,  wantonly,  and  maliciously  blew  a  whistle 
with  intent  to  frighten  plaintiff's  horse,  no  recovery  could  be  had  where  the 
evidence  showed  no  more  than  mere  negligence  of  defendants.  St.  Louis  & 
S.  F.  R.  Co.  v.  Boush  (Okl.)  174 -P.  1036. 

98  St.  Louis  &  S.  F.  R.  Co.  v.  Johnson,  86  P.  156,  74  Kan.  83. 

99  Refusal  to  instruct  that  a  recovery  could  be  had  on  proving  the  slan- 
derous statement  precisely  as  charged  in  the  petition  held  not  error.     Smith 
v.  Gillis,  51  Okl.  134,  151  P.  869.    It  is  sufficient  to  prove  the  substance  of  the 
identical  words  charged,  or  so  many  of  them  as  may  be  sufficient  to  make  out 
a  case,  without  regard  to  structural  combination  not  materially  affecting  the 
meaning  of  the  actionable  words.    Id. 

(622) 


Art.  12)  ISSUES,  PROOF,  AND  VARIANCE  §  730 

rent  insurance,  and  the  reply  sets  up  a  waiver,  and  the  policy  au- 
thorizes concurrent  insurance,  it  is  unnecessary  to  prove  the  al- 
leged waiver.1 

§  730.     Proof  admissible  under  pleadings 

Ordinarily  the  evidence  must  be  confined  to  the  issues  raised  by 
the  pleadings ; 2  but  this  rule  will  not  be  applied  so  as  to  work  an 
injustice  by  excluding  evidence  because  it  only  indirectly  or  partial- 
ly supports  the  allegations.3 

Evidence  which  may  reasonably  be  held  to  have  a  bearing  upon 

1  Springfield  Fire  &  Marine  Ins.  Co.  v.  Null,  133  P.  235,  37  Okl.  665. 

2  Comanche  Mercantile  Co.  v.  Wheeler  &  'Motter  Mercantile  Co.,  55  Okl. 
328,  155  P.  583 ;    Winans  v.  Hare,  46  Okl.  741,  148  P.  1052 ;    Frazier  v.  Eben- 
ezer  Baptist  Church,  56  P.  752,  60  Kan.  404 ;   Hartford  Fire  Ins.  Co.  v.  War- 
britton,  71  P.  278,  66  Kan.  93 ;   Westchester  Fire  Ins.  Co.  v.  Coverdale,  58  P. 
1029,  9  Kan.  App.  651 ;    Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Spears,  122  P.  228,  31 
Okl.  469;    Chambers  v.  Van  Wagner,  123  P.  1117,  32  Okl.  774;    Robieson  v. 
Royce,  66  P.  646,  63  Kan.  886. 

A  tax  deed,  executed  after  the  commencement  of  an  action,  and  not  put  in 
issue,  nor  mentioned  by  the  pleadings,  cannot  be  introduced  on  trial.  Camp- 
bell v.  Fulmer,  18  P.  493,  39  Kan.  409. 

A  plaintiff,  in  his  complaint,  must  state  the  facts  constituting  his  cause  of 
action,  and  is  not  at  liberty  to  make  out  his  case  by  giving  in  evidence  facts 
which  he  has  not  stated  in  his  complaint.  Burke  v.  Levy,  8  P.  527,  68  Cal. 
32 ;  Nordholt  v.  Nordholt,  26  P.  599,  87  Cal.  552,  22  Am.  St.  Rep.  268 ;  King- 
man,  P.  &  W.  R.  Co.  v.  Quinn,  25  P.  1068,  45  Kan.  477 ;  Robbins  v.  Barton,  31 
P.  686,  50  Kan.  120 ;  Northern  Pac.  R.  Co.  v.  O'Brien,  21  P.  32,  1  Wash.  St. 
599;  Gilmore  v.  H.  W.  Baker  Co.,  41  P.  124,  12  Wash.  468. 

Without  pleading  and  proof  of  special  damages  for  delay  in  transit  of 
shipment,  it  was  error  to  admit  evidence  of  depreciation  of  value  of  merchan- 
dise after  delivery  to  consignee,  because  he  had  to  carry  it  over  to  another 
season.  Wichita  Falls  &  N.  W.  Ry.  Co.  v.  D.  Cawley  Co.  (Okl.)  172  P.  70. 

Permitting  plaintiff  to  testify  that  she  became  sick  in  consequence  of  being 
deprived  by  the  conductor  of  her  suit  case,  containing  medicine,  held  error, 
where  her  petition  did  not  ask  special  damages  because  thereof.  Chicago, 
Rock  Island  &  P.  Ry.  Co.  v.  Mailes,  52  Okl.  278,  152  P.  1131.  The  evidence  in 
a  passenger's  action  for  injuries  must  be  confined  to  the  issues,  raised  in  the 
pleadings.  Id. 

In  an  action  for  damages  to  a  shipment  of  cattle,  held,  that  the  admission  of 
evidence  on  the  issue  of  a  waiver  of  terms  of  the  shipment  contract  was  er- 
ror, where  such  issue  was  not  raised  by  the  pleadings.  Atchison,  T.  &  S.  F. 
Ry.  Co.  v.  Lynn  &  Hudson,  54  Okl.  701,  154  P.  657. 

3  In  an  action  to  recover  on  a  note,  a  copy  of  which  is  set  out  in  the  peti- 
tion, proof  of  loss  of  the  note  and  of  its  execution  and  contents  may  be  re- 
ceived, though  no  mention  of  the  loss  is  made  in  the  petition.    Bare  v.  Ford, 
87  P.  731,  74  Kan.  593,  118  Am.  St.  Rep.  336,  11  Ann.  Cas.  251. 

(623) 


§    730  PLEADINGS  ( Ch.  11 

the  issues  should  be  admitted,4  but  evidence  on  a  matter  entirely 
distinct  from  anything  in  issue  should  be  excluded.5 

4  In  mandamus  to  compel  the  officers  of  a  county  to  hold  their  offices  at 
the  county  seat,  when  the  answer  puts  in  issue  the  legality  of  the  election, 
all  testimony  tending  to  show  fraud  in  receiving  illegal  votes  or  rejecting  le- 
gal votes  for  either  of  the  contesting  towns  is  admissible.    State  v.  Stock,  16 
P.  106,  38  Kan.  154,  rehearing  denied  16  P.  799,  38  Kan.  184. 

Where  plaintiff  and  defendant,  attorneys,  were  employed  in  action  to.  re- 
cover land,  and  client  was  to  pay  one-quarter  of  value  of  land  recovered,  and, 
after  recovery,  conveyed  one-quarter  of  land  to  defendant,  and  plaintiff  sued 
to  recover  a  one-half  interest  therein,  wherein  defendant  denied  plaintiff's  in- 
terest, defendant's  evidence  that  land  was  conveyed  for  services  rendered  by 
him,  and  not  under  contract  of  employment,  was  within  issues  and  compe- 
tent, and  its  exclusion  was  prejudicial  error.  Lamb  v.  Alexander  (Okl.)  179 
P.  587. 

Where  a  petition  against  *  carrier  for  damages  to  cattle  charged  rough  and 
indifferent  handling,  by  which  the  cattle  were  badly  bruised,  evidence  that 
the  cattle  were  badly  bruised,  by  their  being  lugged  about  in  the  cars  and 
jammed  against  the  sides  and  ends  of  the  cars,  was  within  the  issues.  St.' 
Louis  &  S.  F.  B.  Co.  v.  Bilby,  130  P.  1089,  35  Okl.  589. 

In  action  to  set  aside  compromise  of  claim  for  seduction,  where  petition  al- 
leged that  defendants  misrepresented  amount  for  which  settlement  could  be 
made,  testimony  as  to  what  girl's  father  told  defendants  regarding  terms  of 
settlement  was  admissible.  Matthews  v.  McNeill,  157  P.  387,  98  Kan.  5.  In 
action  to  set  aside  compromise  of  claim  for  seduction,  where  petition  alleged 
that  defendants  falsely  represented  that  girl  became  pregnant,  doctor's  testi- 
mony that  she  became  pregnant  was  admissible.  Id. 

Petition  and  answer  in  an  action  for  secret  profits  made  by  defendant  in  a 
real  estate  transaction,  wherein  he  acted  as  plaintiffs'  agent,  held  to  raise  a 
primary  issue  of  agency.  Gast  v.  Barnes,  44  Okl.  114,  143  P.  856. 

Petition  and  answer  in  an  action  for  wrongful  death  held  to  show  without 
controversy  that  deceased  was  injured  while  employed  by  an  express  com- 
pany, and  not  while  employed  by  the  defendant  railway  company,  though  the 
petition  alleged  that  deceased  was  also  engaged  in  handling  personal  baggage. 
Missouri,  K.  &  T.  By.  Co.  v.  West,  38  Okl.  581,  134  P.  655. 

Where  a  petition  charges  that  a  city  negligently  permitted  a  sidewalk  to 
become  out  of  repair  so  as  to  be  dangerous,  and  negligently  permitted  it  to 
remain  in  a  dangerous  condition,  and  the  answer  denies  the  allegations,  it  is 
not  error  to  permit  the  plaintiff  to  prove  that  the  defendant  city  bad  actual 
notice  of  the  defects,  or  that  it  had  been  out  of  repair  for  such  a  length  of 
time  as  to  impute  notice  to  the  city.  City  of  Guthrie  v.  Finch,  75  P.  288,  13 
Okl.  496. 

In  railway  mail  clerk's^action  for  personal  injury,  alleging  that  car  was 
cold  and  unfit  for  occupancy,  evidence  that  windows  rattled  and  that  doors 
were  loose  were  admissible.  St.  Louis  &  S.  F.  B.  Co.  v.  McClain,  63  Okl.  75, 
162  P.  751. 

Where  plaintiff  in  ejectment  claimed  right  of  possession  under  a  verbal 
agreement  to  convey  land  in  settlement  of  a  debt,  and  the  proof  showed  that 
possession  was  taken  under  an  agreement  that  the  land  should  stand  as  se- 

5  See  note  5  on  following  page. 

(624) 


Art.  12)  ISSUES,  PROOF,  AND  VARIANCE  §    730 

If  testimony  is  competent  to  sustain  either  one  of  two  causes  oi 
action  contained  in  a  petition,  it  should  be  admitted.6 

The   fact  that   evidence   relevant  as  to   an   issue  raised  by  an 

curity,  either  agreement  was  pertinent  to  the  issue.  Charpie  v.  Stout,  129  P. 
1166,  88  Kan.  682,  denying  rehearing  128  P.  396,  88  Kan.  318.  Declarations 
of  the  predecessor  in  title  of  plaintiffs  in  ejectment  that  the  land  in  contro- 
versy should  pass  to  defendants  at  her  death  were  as  competent  to  rebut  a 
claim  based  on  an  agreement  for  sale  as  one  based  on  an  agreement  for  se- 
curity. Id. 

Where,  in  ejectment,  defendant  claims  under  deed  from  the  plaintiff  given 
to  elear  title  upon  payment  of  a  debt  to  secure  which  the  defendant  had  exe- 
cuted a  deed  to  plaintiff,  such  claim1  does  not  preclude  defendant  from  recov- 
ering upon  a  title  held  prior  to  the  giving  of  such  deed.  Madden  v.  Stegman, 
127  P.  524,  88  Kan.  29. 

Where  the  petition  in  an  action  to  recover  for  work  and  material  and  fore- 
closure of  a  mechanic's  lien  stated  a  cause  of  action  for  work  and  material, 
evidence  may  be, received  thereunder,  though  on  its  face  it  showed  plaintiff 
was  entitled  to  no  lien.  Uncle  Sam  Oil  Co.  v.  Richards,  60  Okl.  83,  158  P. 
1187. 

Where  petition  negatived  contributory  negligence  and  answer  alleged  that 
if  plaintiff  received  any  injuries  they  were  the  result  of  her  own  negligence, 
the  issue  of  contributory  negligence  was  raised ;  reply  denying  that  plain- 
tiff's injuries  were  the  result  of  her  own  negligence.  Pioneer  Telephone  & 
Telegraph  Co.  v.  Kophart,  59  Okl.  265,  159  P.  355. 

In  an  action  to  cancel  a  deed,  under  a  general  allegation  of  forgery  the 
grantor  may  show  that  the  deed  was  placed  in  escrow  with  defendant  with 
the  space  for  the  name  of  the  grantee  left  blank,  and  that  defendant,  with- 
out authority,  filled  in  his  own  name.  Maclellan  v.  Seim,  46  P.  959,  57  Kan. 
471. 

c  In  action  against  domestic  railway  for  injuries  in  another  state,  defense 
that  plaintiff  was  not  defendant's  employe1  is  not  available  under  plea  to  ju- 
risdiction of  trial  court.  Wichita  Falls  &  N.  W.  Ry.  Co.  v.  Puckett,  53  Okl. 
4<&,  157  P.  112. 

In  an  action  for  the  value  of  live  stock,  where  there  is  no  negligence  al- 
leged, and  the  only  breach  of  contract  pleaded  is  the  loss  of  the  live  stock  in 
New  Mexico,  it  is  error  to  admit  evidence  of  injuries  in  Arizona ;  such  issue 
not  being  raised  by  the  pleadings.  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Lambert, 
123  P.  428,  32  Okl.  665.  In  an  action  for  the  loss  of  live  stock  shipped  from 
Arizona  to  Oklahoma,  where  defendant  pleaded  provisions  of  a  shipping  con- 
tract as  a  defense  and  alleged  that  they  were  valid  under  the  laws  of  Ari- 
zona, the  exclusion  of  evidence  of  the  laws  of  Arizona  was  error.  Id. 

Where  the  petition  alleges  specific  acts  of  negligence,  evidence  tending  to 
prove  other  negligent  acts  not  embraced  in  the  acts  charged  is  not  admissible. 
Missouri,  O.  &  G.  Ry.  Co.  v.  Adams,  52  Okl.  557,  153  P.  200. 

Evidence  of  a  settlement  under  a  compromise  agreement  held  not  admissi- 
ble under  a  plea  of  payment.  Continental  Gin  Co.  v.  Arnold,  52  Okl.  569, 
153  P.  160. 

In  an  action  under  Rev.  St.  U.  S.  §  5198  (U.  S.  Comp.  St.  §  9759),  to  recover 

e  Lyons  v.  Berlau,  73  P.  52,  67  Kan.  426. 

HON.PL.&PBAC.— 40  (025) 


§   730  PLEADINGS  CCh.  11 

answer  was  not  relevant  to  an  issue  raised  by  the  reply  to  a  coun- 
terclaim did  not  render  the  evidence  inadmissible.7 

A  plaintiff  alleging  ownership  of  property  at  a  certain  time  is 
not  restricted,  as  to  the  evidence  of  such  ownership,  to  the  day  fix- 
ed in  the  petition,  but  may  show  ownership  prior  to  such  time." 

In  an  action  for  personal  injuries,  where  defendant  alleges  con- 
tributory negligence  and  denies  negligence  generally,  there  is  no 
admission  of  negligence  limiting  the  issues  to  that  of  contributory 
negligence.9 

Proof  of  ratification  of  the  acts  of  an  agent  includes  proof  of 
agency  and  authority,  and  may  be  made  under  a  pleading  charging 
the  ratified  act  to  be  that  of  the  principal.10 

Proof  cannot  be  offered  by  the  surety  that  the  default  of  the 

principal  was  excused,   unless  the  acts  relied  on  to  excuse  the  de- 

i 

the  penalty  provided  for  the  payment  of  usurious  interest,  facts  constituting 
accord  and  satisfaction  cannot  be  proven  under  a  general  allegation  of  pay- 
ment. First  Nat.  Bank  v.  Latham,  132  P.  891,  37  Okl.  286. 

Where  a  real  estate  agent  sues  for  commissions  earned  on  a  sale  of  land 
and  relies  on  a  special  contract,  it  is  error  to  admit  evidence  establishing  a 
quantum  meruit  and  to  instruct  that  the  jury  may  return  a  verdict  for  such 
sum  as  is  customary  for  the  services  rendered.  King  v.  Stephenson,  116  P. 
183,  29  Okl.  29. 

Where  the  petition  declares  merely  on  an  express  contract  and  pleads  full 
performance  thereof,  recovery  cannot  be  had  on  quantum  meruit.  Dunn  v. 
T.  J.  Cannon  Co.,  51  Okl.  382,  151  P.  1167. 

Where  action  is  brought  on  insurance  contract  and  petition  alleges  proof 
of  loss  was  furnished,  evidence  of  waiver  of  proof  of  loss  is  inadmissible. 
Hartford  Fire  Ins.  Ob.  v.  Mathis,  57  Okl.  332,  157  P.  134. 

Where  the  petition  pleaded  that  affirmative  proofs  of  loss  of  time  had  been 
furnished,  evidence  that  plaintiff  wrote  to  the  company,  claiming  indemnity, 
and  that  it  replied,  denying  all  liability,  was  not  within  the  issues.  Conti- 
nental Casualty  Co.  v.  Wynne,  129  P.  16,  36  Okl.  325. 

Evidence  of  directions  given  by  plaintiffs  to  their  agent,  relative  to  con- 
centrating the  converted  property  at  a  given  point,  held  immaterial,  where  it 
was  admitted  by  the  pleadings  that  defendant  was  in  possession  when  the 
suit  was  instituted.  West  Tulsa  Belt  Ry.  Co.  v.  Bell,  54  Okl.  175,  153  P.  622. 

Where  bill  of  particulars  seeks  recovery  for  conversion,  admission  of  evi- 
dence of  breach  of  warranty  by  defendants  is  error.  %  Pierce  v.  Barks,  60  Okl. 
97,  159  P.  323. 

In  ejectment,  where  defendant  claims  possession  under  contract  with  plain- 
tiff for  purchase  of  the  property,  evidence  of  title  on  plaintiff's  part  becomes 
immaterial.  Baldridge  v.  Centgraf,  108  P.  83,  82  Kan.  240. 

T  Mulhall  v.  Mulhall,  41  P.  577,  3  Okl.  252. 

s  Russell  v.  Bradley,  28  P.  176,  47  Kan.  438. 

a  Clemens  v.  St.  Louis  &  S.  F.  R.  Co.,  131  P.  169,  35  Okl.  667. 

10  St.  Louis  &  S.  F.  R.  Co.  v.  Leger  Mill  Co.,  53  Okl.  127,  155  P.  599. 

(626) 


Art.  12)  ISSUES,  PROOF,  AND   VARIANCE  §§   730-731 

fault,  and  which  rendered  the  performance  of  the  condition  of  the 
recognizance  impossible,  have  been  pleaded  by  such  surety.11 

The  petition  in  a  personal  injury  case  must  allege  that  obliga- 
tions have  been  incurred  for  medical  attention,  hospital  fees,  and 
like  items  in  the  nature  of  special  damages,  to  justify  proof  of  such 
items.12 

Incompetent  testimony  is  not  rendered  competent  by  being  set 
out  in  the  pleadings,  though  the  opposing  party  has  failed  to  ask 
that  it  be  stricken  out.lp 

§  731.    Under  general  denial 

A  general  denial  puts  in  issue  every  material  fact  pleaded,14  and 
any  evidence  is  admissible  under  a  general  denial  which  controverts 
the  facts  denied.15 

11  Madden  v.  State,  10  P.  469.  35  Kan.  146. 

12  Revel  v.  Pruitt,  142  P.  1019,  42  Okl.  696. 
is  Ireton  v.  Iretou,  52  P.  74,  59  Kan.  92. 

i*  First  State  Bank  of  Mannsville  v.  Howell,  137  P.  657,  41  Okl.  216;  Same 
v.  Lawson,  137  P.  661,  41  Okl.  226. 

15  Electric  Ry.,  Light  &  Ice  Co.  v.  Brickell,  85  P.  297,  73  Kan.  274;  Lower 
v.  Shorthill  (Okl.)  176  P.  107. 

In  an  action  to  recover  damages  for  the  failure  of  the  defendant  to  deliver  a 
quantity  of  corn  which  plaintiff  claimed  to  have  purchased  from  defendant 
at  a  stated  time,  and  on  certain  terms,  defendant  filed  a  general  denial.  Un- 
der such  an  answer,  defendant  was  entitled  to  offer  any  testimony  which 
went  to  controvert  the  facts  that  the  plaintiff  was  bound  to  establish  in  order 
to  maintain  his  action.  Davis  v.  McOrocklin,  8  P.  196,  34  Kan.  218. 

Evidence  that  at  date  of  the  deed  from  plaintiff  relied  on  by  defendant  in 
ejectment,  and  for  his  entire  life,  plaintiff  was  an  idiot,  held  admissible  un- 
der general  denial  with  allegations  of  ownership.  Hatfield  v.  Lotty,  48  Okl. 
173,  149  P.  1171. 

In  action  for  damages  for  wrongful  discharge,  defendant,  under  a  general 
denial,  was  entitled  to  introduce  evidence  controverting  any  fact  which  plain- 
tiff was  bound  to  prove.  McKelvy  v.  Choctaw  Cotton  Oil  Co.  (Okl.)  178  P. 
882.  In  action  for  damages  for  wrongful  discharge,  the  breach  of  the  con- 
tract was  a  necessary  element  in  statement  of  his  action  which  he  was  re- 
quired to  affirmatively  prove.  Id. 

In  action  for  damages  for  personal  injuries,  defense  that  person  responsible 
for  injury  complained  of  was  independent  contractor  is  not  affirmative  one, 
and  need  not  be  specially  pleaded,  but  is  available  under  general  denial. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Beasley  (Okl.)  168  P.  200. 

( In  an  action  against  a  sheriff  for  his  refusal  to  levy  a  writ  against  prop- 
erty, the  petition  alleged  that  the  debtor  "had  sufficient  property  and  effects 
on  which  a  levy  might  have  been  made  to  fully  satisfy  plaintiffs  demand." 
To  the  petition  a  general  denial  was  filed.  The  plaintiff's  evidence  tended  to 
show  the  debtor's  ownership  of  a  stock  of  goods.  Held,  that  evidence  of  chat- 

(627) 


§    731  PLEADINGS  (Ch.  11 

Where  defendant  pleads  as  a  defense  the  making  of  a  written 
contract  between  himself  and  the  plaintiff,  but  specifies  no  con- 
sideration, the  law  imports  one,  and,  if  the  defense  is  only  contro- 
verted in  the  reply  by  a  general  denial,  the  issue  of  consideration  is 
not  raised.16  But  a  special  defense  must  be  pleaded  to  authorize  the 
introduction  of  evidence  thereon.17 

Where  a  settlement  of  a  debt  is  relied  on  as  a  defense  it  must  be 
pleaded;  proof  thereof  not  being  admissible  under  a  general  de- 
nial.18 

Where  an  action  is  merely  for  an  alleged  existing  balance  due  at 
the  beginning  of  suit,  without  reference  to  th£  extent  or  amount  of 
original  liability,  evidence  of  payment  is  admissible  under  the  gen- 
eral denial.19 

A  verified  general  denial  will  not  raise  the  issue  of  execution  of 

tel  mortgage  liens  on  the  goods  to  an  amount  in  excess  of  their  value  was  ad- 
missible under  the  general  denial.  Phelps,  Dodge  &  Palmer  Co.  v.  Skinner, 
65  P.  667,  63  Kan.  364. 

In  an  action  against  an  attorney  for  negligently  failing  to  file  appeal  as 
agreed,  defendant  may,  under  a  general  denial,  introduce  evidence  to  rebut 
negligence.  Tishomingo  Electric  Light  &  Power  Co.  v.  Gullett,  52  Okl.  180, 
152  P.  849. 

Where,  in  an  action  for  the  balance  due  on  a  contract  and  for  extras,  de- 
fendant answers  by  general  denial  and  by  specifically  denying  liability  for 
the  extras  it  is  error  to  exclude  his  evidence.  Harris  v.  Warren-Sinith  Hard- 
ware Co.,  44  Okl.  477,  144  P.  1050. 

In  an  action  of  conversion,  any  evidence  is  admissible  under  a  general  de- 
nial which  tends  to  disprove  plaintiff's  allegations ;  and  it  is  not  necessary? 
under  Comp.  Laws  1909,  §  5634,  to  plead  that  the  property  converted  was  a 
gift  inter  vivos  to  defendant.  Manning  v.  Maytubby,  141  P.  781,  42  Okl.  414. 

is  Avery  Mfg.  Co.  v.  Lambertson,  86  P.  456,  74  Kan.  304. 

17  General  denial  is  insufficient  in  action  on  fire  insurance  policy  to  pre- 
sent issue  of  insured's  willful  burning  of  property.  Springfield  Fire  &  Ma- 
rine Ins.  Co.  v.  Griffin,  64  Okl.  131,  166  P.  431. 

In  an  action  on  a  fire  insurance  policy,  evidence  of  waiver  of  proofs  of  loss 
is  inadmissible,  unless  pleaded.  Palatine  Ins.  Co.  v.  Lynn,  141  P.  1167,  42 
Okl.  486. 

Where  the  insurer  dM  not  specially  plead  as  a  defense  pro  tanto  its  re- 
duced liability  from. the  loss  occurring  while  the  building  wafe  vacant,  such 
defense  which  was  based  on  a  condition  subsequent,  was  not  available.  Liv- 
erpool &  London  &  Globe  Ins.  Co.  v.  Cargill,  44  Okl.  735,  145  P.  1134. 

A  breach  of  warranty  cannot  be  proved  under  a  general  denial,  but  must 
be  specially  pleaded.  Standard  Fashion  Co.  v.  Morgan,  48  Okl.  217,  149  P. 
1160. 

is  Roniger  v.  Mclntosh,  137  P.  792,  91  Kan.  368. 

is  Jones  v.  El  Reno  Mill  &  Elevator  Co.,  110  P.  1071,  26  Okl.  796,  Ann.  Gas. 
1912B,  486. 

(628) 


Art.  12)  ISSUES,  PROOF,  AND  VARIANCE  §§   731-732 

a  written  instrument,  where  in  the  same  answer  there  is  an  admis- 
sion of  the  execution.20 

In  ejectment,  all  defenses,  legal  and  equitable,  may  be  proven  in 
evidence  under  a  general  denial.21 

The  question  as  to  whether  an  Indian  is  an  adult,  and  thereby 
competent  to  enter  into  a  lease  contract,22  or  whether  he  is  compe- 
tent to  make  a  lease  without  the  approval  of  the  county  court,  and 
the  questions  as  to  his  age,  his  quantum  of  Indian  blood,  and  the 
alienability  of  his  surplus  and  homestead  allotment,  constitute  de- 
fensive matters,  not  available  under  a  general  denial.23 

§  732.     When  evidence  admissible  of  facts  not  pleaded 

Facts  relied  on  to  constitute  waiver  of  proof  of  loss  must  be  plead- 
ed with  particularity  before  evidence  to  establish  same  can  be  re- 
ceived,24 as  must  also  all  acts,  representations,  and  conduct  relied 
on  to  constitute  an  estoppel.25 

20  Wilhite  v.  Dieball,  94  Kan.  78,  145  P.  854. 

21  Eller  v.  Noah  (Okl.)  168  P.  819 ;   Hurst  v.  Sawyer,  37  P.  817,  2  Okl.  470 ; 
Rowsey  v.  Jameson,  46  Okl.  780,  149  P.  880;    Wiggins  v.  Powell,  152  P.  765, 
96   Kan.  478;    Armstrong  v.  Brownfield,  4  P.  185,  32  Kan.  116;    Smith  v. 
Hobbs,  31  P.  687,  49  Kan.  800 ;   Adam  v.  Johnson,  65  P.  662,  63  Kan.  886. 

In  ejectment  where  the  petition  and  answer  set  forth  such  facts  and  make 
such  denials  as  are  required  by  Code  Civ.  Proc.  §§  619,  620  (Gen.  St.  1909,  §S 
6214,  6215),  either  party  may  prove  any  fact  which  would  tend  to  strengthen 
his  own  title  or  defeat  that  of  his  adversary  as  if  the  facts  were  fully  plead- 
ed, including  those  showing  that  the  rights  of  either  party  were  barred  by 
limitations.  Taylor  v.  Danley,  112  P.  595/83  Kan.  646,  21  Ann.  Gas.  1241. 

22  The  question  as  to  whether  an  Indian  is  an  adult,  and  thereby  competent 
to  enter  into  a  lease  contract,  or  otherwise  alienate  his  allotment,  is  defensive 
matter,  not  available  to  the  defendant  under  a  general  denial.     Mullen  v. 
Carter  (Okl.)  173  P.  512. 

23  In  an  action  for  rent,  under  the  statute  the  question  whether  the  Indian 
lessor  was  competent  to  make  a  lease  without  approval  of  the  county  court, 
and  the  questions  as  to  his  age,  his  quantum  of  Indian  blood,  and  the  aliena- 
bility of  his  surplus  and  homestead  allotment,  constituted  defensive  matters 
not  available  under  a  general  denial.    Mullen  v.  Howard,  143  P.  659,  43  Okl. 
531. 

24  Continental  Ins.  Co.  v.  Chance,  48  Okl.  324,  150  P.  114. 

25  Bunker  v.  Harding  (Okl.)  174  P.  749. 

Unless  estoppel  or  waiver  of  conditions  in  a  mutual  fire  insurance  policy  is 
distinctly  pleaded  by  insured  in  action  thereon,  evidence  thereof  is  inadmis- 
sible. Wolff  v.  German-American  Farmers'  Mut.  Ins.  Co.,  60  Okl.  113,  159 
P.  480. 

In  an  action  on  a  life  policy,  it  was  error  to  admit  evidence  tending  to 
show  such  estoppel  or  waiver,  where  not  pleaded.  Fidelity  Mut.  Life  Ins.  Co. 
of  Philadelphia,  Pa.,  v.  Dean,  57  Okl.  84,  156  P.  304. 

(629)' 


§§  732-733  PLEADINGS  (Ch.ll 

In  an  action  for  injuries  to  plaintiff  on  the  track,  an  ordinance 
limiting  the  speed  of  trains  within  the  city  limits  may  be  admitted 
in  evidence  to  show  its  violation  by  defendant  as  an  element  to 
establish  actionable  negligence,  though  not  pleaded.26 

Where,  after  the  issues  in  an  ejectment  suit  have  been  made 
up,  defendants  obtain  a  deed  from  plaintiff,  and  plaintiff  claims  on 
trial  that  the  deed  was  procured  through  fraud,  evidence  thereof  is 
admissible.27 

DIVISION  III. — VARIANCE 

§  733.     Rules  and  application 

In  actions  at  law,  in  order  to  enable  plaintiff  to  recover  or  defend- 
ant t6  succeed  in  his  defense,  the  proof  must  not  vary  from  what 
had  been  alleged  in  the  pleadings.28 

"Variance"  means  "difference,"  and  it  is  no  variance  that  the 
proof  does  not  establish  all  the  allegations  of  the  petition.29 

26  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Martin,  141  P.  276,  42  Okl.  353. 

27  Davis  v.  Mimey,  60  Okl.  244,  159  P.  1112. 

2 s  Chambers  v.  Van  Wagner,  123  P.  1117,  32  Okl.  774. 

Where  a  broker  sues  to  recover  a  commission  on  sale  of  realty,  he  cannot 
recover  on  the  theory  of  damages  from  breach  by  the  owner  of  his  contract 
of  sale.  Robinson  v.  Oklahoma  Fire  Ins.  Co.,  55  Okl.  52,  155  P.  202.  Under 
Rev.  Laws  1910,  §  4786,  where  the  cause  alleged  is  on  a  broker's  contract  for 
commission,  and  the  proof  shows  it  to  be  a  cause  for  the  defendant  owner's 
breach  of  his  contract  to  sell  to  the  purchaser  procured,  there  is  not  a  vari- 
ance, but  a  failure  of  proof.  Id. 

The  plaintiff,  in  an  action  to  set  aside  a  deed  and  have  a  certain  judgment 
declared  a  lien  on  the  property  was  not  entitled  to  recover,  in  the  absence  of 
proof  that  the  judgment  introduced  in  evidence  had  been  recorded  or  dock- 
eted so  as  to  become  a  subsisting  lien.  Lockoby  v.  Cook,  132  P.  142,  37  Okl. 
419.  Where,  in  an  action  to  have  a  deed  set  aside  and  a  certain  judgment  de- 
clared a  lien  on  the  property  plaintiff  introduced  a  judgment  rendered  in  a 
different  court  for  a  different  amount  against  different  parties  than  that  de- 
scribed in  the  petition,  the  variance  was  fatal  in  the  absence  of  any  amend- 
ment. Id. 

A  divorce  should  not  be  granted  for  acts  of  cruelty  entirely  different  from 
those  alleged  in  the  petition.  Winterburg  v.  Winterburg,  34  P.  97»1,  52  Kan. 
406. 

In  an  action  on  an  account  assigned  to  plaintiff  in  writing,  in  which  the 
execution  of  the  assignment  is  admitted  by  the  pleading,  it  is  not  error  for 
the  court  to  refuse  to  admit  the  defendant  to  introduce  evidence  tending  to 
show  that  such  assignment  is  only  colorable,  and  that  the  plaintiff  is  not  the 
real  party  in  interest,  where  no  such  defense  is  pleaded.  Lesh  v.  Meyer,  66- 
P.  245,  63  Kan.  524. 

29  Red  Ball  Transfer  &  Storage  Co.  v.  Deloe,  30  Okl.  522,  120  P.  575. 

(630) 


Art.  12)  ISSUES,  PROOF,  AND   VARIANCE  §    733 

That  a  petition  alleges  more  than  has  been  proven  is  not  fatal 
where  the  unproven  allegations  are  not  necessary  to  recovery,  nor 
is  it  fatal  that  the  testimony  offered  does  not  support  certain  allega- 
tions in  the  petition  where  it  does  support  others  sufficient  to  au- 
thorize a  recovery.30 

A  departure  between  pleadings  and  proof  is  not  disclosed,  merely 
because  the  proof  of  essential  allegations  is  not  extended  to  cover 
unnecessary  averments  made  in  connection  with  them.31 

Proof  of  a  fact  different  from  that  stated  in  the  pleadings,  but  not 
amounting  to  a  failure  of  proof  and  to  which  no  objection  is  made 
by  the  adverse  party,  is  of  no  consequence.82 

so  Shawnee  Light  &  Power  Co.  v.  Sears,  95  P.  449,  21  Okl.  13. 

Under  Civ.  Code,  §  134  (Gen.  St.  1909,  §  5727),  discrepancy  between  pleading 
that  purchaser  of  land  requested  the  seller  to  obtain  as  large  loan  as  pos- 
sible, after  contract  of  sale  was  executed,  and  proof  that  request  was  made 
after  agreement  had  been  made,  but  before  it  was  reduced  to  writing,  was 
immaterial.  O'Harro  v.  Akey,  158  P.*  854,  98  Kan.  511. 

Under  Code  Civ.  Proc.  §  134  (Gen.  St.  1909,  §  5727),  declaring  a  variance 
immaterial  unless  misleading  a  party  to  his  prejudice,  a  reply  speaking  in 
the  name  of  a  firm,  and  proof  that  one  of  the  partners  owned  all  the  prop- 
erty and  effects  which  were  delivered  to  the  defendant,  are  not  in  fatal  vari- 
ance. Danielson  v.  Scott,  129  P.  1190,  88  Kan.  789. 

Where  a  petition  alleged  a  will  and  the  granting  of  letters  testamentary  to 
have  been  made  in  one  county,  it  was  not  error  to  admit  in  evidence  proof 
of  probate  and  issue  of  testamentary  letters  by  authenticated  transcript  from 
the  probate  court  of  another  county,  since  this  was  an  immaterial  variance. 
Stout  v.  Crosby,  63  P.  661,  10  Kan.  App.  580. 

Where  plaintiff,  suing  for  personal  injuries,  pleads  that  certain  items  of 
medical  expense  have  been  paid,  but  offers  to  show  that  the  items  have  been 
incurred,  there  is  no  .variance  prejudicial  to  rights  of  defendant,  and  exclu- 
sion of  such  offer  is  error.  Sweet  v.  Henderson  (Okl.)  178  P.  666. 

si  Bailey  v.  Gatewood,  74  P.  1117,  68  Kan.  231. 

Immaterial  variance  between  allegations  and  proof  is  not  fatal,  where  there 
is  sufficient  evidence  to  show  substantially  the  matters  alleged.  Russell  v. 
Watts,  96  Kan.  275,  150  P.  600. 

32  Patterson  v.  Missouri,  K.  &  T.  Ry.  Co.,  104  P.  31,  24  Okl.  747. 

Where  a  complaint  in  an  action  against  a  national  bank  as  a  stockholder 
in  another  corporation  alleged  that  it  acquired  such  stock  in  a  particular 
manner,  evidence  that  it  was  acquired  in  a  different  manner  held  not  a  fatal 
variance.  First  Nat.  Bank  v.  Montgomery  County  Nat.  Bank,  67  P.  458,  64 
Kan.  134. 

Where,  in  an  action  for  money  loaned,  defendant  answered  that  the  money 
was  invested  in  cattle  in  which  the  parties  were  partners,  and  the  court  found 
that  the  money  loaned  was  invested  in  partnership  cattle,  and  afterwards 
defendant  agreed  to  ttke  plaintiff's  interest  and  repay  the  amount  invested  by 
him,  and  gave  judgment  for  plaintiff,  no  objection  having  been  made  till  after 

(631) 


§   733  PLEADINGS  (Ch.ll 

In  a  broker's  action  for  eompensation,  there  was  no  variance  be- 
tween an  allegation  that  it  was  understood  that  plaintiff  should  re- 
ceive the  usual  and  customary  commission  paid' real  estate  agents 
and  proof  of  a  parol  agreement  without  any  stipulations  as  to  the 
amount  of  the  compensation,  as  it  will  be  implied  by  law  that  plain- 
tiff was  to  receive  the  customary  or  reasonable  commission.33 

Where  a  petition  declares  on  both  oral  and  written  contracts  con- 
cerning the  same  matter,  and  evidence  shows  oral  contract,  there  is 
no  variance  between  pleading  and  proof.34 

A  petition  which  alleges  all  the  facts  showing  a  cause  of  action 
and  the  amount  of  actual  damages,  but  prays  for  treble  damages 
which  are  not  recoverable,  does  not  prevent  recovery  of  actual 
damages.35 

A  variance  is  not  material,  unless  it  has  actually  misled  the  ad- 
verse party.36 

judgment,  there  was  not  a  fatal  variance.     Mulhall  v.  Mulhall,  41  P.  109,  3 
Okl.  304. 

Where  petition  alleges  contract  and  amount  due  thereunder,  but  is  uncer- 
tain as  to  whether  it  was  express  or  implied,  and  there  was  no  objection  for 
uncertainty,  variance  would  not  arise,  because  proof  showed  right  to  recover 
upon  quantum  meruit.  Producers'  Supply  Co.  v.  Shirley  (Okl.)  170  P.  504. 

A  petition  on  a  fire  policy  alleged  specific  acts  as  a  waiver  of  proof  of  loss 
and  on  the  trial  uncontradicted  evidence  was  introduced,  without  objection, 
sufficient  to  show  a  waiver  thereof,  but  upon  other  grounds.  Held,  that  the 
petition  would  be  considered  as  amended  so  as  to  conform  to  the  proof,  and  a 
waiver  so  proved  fairly  in  issue.  St.  Paul  Fire  &  Marine  Ins.  Co.  v.  Mitten- 
dorf,  104  P.  354,  24  Okl.  651,  28  L.  R.  A.  (N.  S.)  651. 

There  is  no  material  variance  between  an  allegation  that  a  railroad's  em- 
ployees knew  that  plaintiff  was  in  a  place  of  danger  and  proof  that  they  should 
have  known  it.  St.  Louis  &  S.  F.  Ry.  Co.  v.  Cole,  49  Okl.  1,  149  P.  872,  L.  R. 
A.  1915F,  866. 

ss  Lowenstein  v.  Holmes,  40  Okl.  33,  135  P.  727. 

3*  Royer  v.  Western  Silo  Co.,  161  P.  654,  99  Kan.  309. 

In  an  action  by  the  mortgagor  to  compel  the  mortgagee  to  pay  over  the 
balance  of  the  loan  to  secure  which  the  mortgage  was  executed,  which  had 
been  withheld  by  the  mortgagee,  plaintiff  alleged  that  his  cause  of  action  was 
based  on  a  verbal  agreement,  while  his  proof  showed  that  the  application  for 
the  loan  was  in  writing,  but  that  subsequently  it  was  modified  by  parol  be- 
fore the  loan  was  made.  •  Held  no  variance.  Kansas  Loan  &  Trust  Go.  v. 
Love,  45  P.  953,  4  Kan.  App.  188. 

33  Mohr  v.  Sands,  44  Okl.  330,  133  P.  238. 

se  Patterson  v.  Missouri,  K.  &  T.  Ry.  Co.,  104  P.  31,  24  Okl.  747;  Guinan  v. 
Readdy,  79  Okl.  Ill,  191  P.  602 ;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Bankers'  Nat. 
Bank,  122  P.  499,  32  Okl.  290;  People's  Nat.  Bank  v.  Myers,  69  P.  164.  65 
Kan.  122. 

A  petition  alleged  a  payment  on  account  so  as  to  toll  limitations.    The  evi- 

(632) 


Art.  12)  ISSUES,  PROOF,  AND   VALANCE  §    733 

Where  two  causes  of  action  are  indefinitely  stated  in  a  petition, 
and  the  petition  is  not  attacked  by  motion  to  separately  state  the 
causes  of  action,  or  to  make  more  definite,  it  is  not  error  to  permit 
plaintiff  during  the  trial  to  abandon  one  of  the  causes  and  proceed 
with  the  other.87 

dence  showed  the  indorsement  of  plaintiff's  note  by  defendant,  the  discount 
of  it  by  plaintiff  at  a  bank,  and  the  payment  thereof  when  due  by  defendant. 
Held  not  a  fatal  variance.  Benton  v.  Yurann,  55  P.  676,  8  Kan.  App.  305. 

There  is  no  error  in  refusing  to  limit  the  inquiry  as  to  the  engine  which 
injured  plaintiff  to  an  engine  of  a  certain  number,  though  that  numbered 
engine  was  testified  to  as  the  one  in  question ;  the  number  of  the  engine  not 
being  essential,  and  the  jury  being  authorized  to  find  for  plaintiff  though 
they  did  not  find  that  the  engine  that  did  the  injury  bore  that  number.  Chi- 
cago Great  Western  Ry.  Co.  v.  Troup,  80  P.  30,  71  Kan.  843. 

An  action  in  replevin  was  brought  against  a  sheriff  in  his  individual  ca- 
pacity and  the  evidence  showed  that  the  property  was  taken  by  him  as  sher- 
iff as  the  property  of  a  third  person  under  an  execution  issued  against  such 
third  person.  Held,  that  there  was  not  a  fatal  variance  between  the  plead- 
ings and  the  proof.  Burchett  v.  Purdy,  37  P.  1053,  2  Okl.  391. 

A  variance  in  the  description  of  a  contract  which  must  be  construed  the 
same,  whether  or  not  the  variance  existed,  not  changing  its  nature,  will  be 
disregarded.  Lowenstein  v.  Holmes,  40  Okl.  33,  135  P.  727. 

A  variance  between  the  original  note  and  the  copy  attached  to  the  peti- 
tion, in  that  the  former  was  dated  March  25,  19 — ,  and  the  latter  March  25, 
1910,  was  not  material.  Zeno  v.  Bazzell,  139  P.  281,  41  Okl.  574. 

That  the  evidence  as  to  date  of  conversion  varied  from  the  date  alleged  in 
the  petition  did  not  authorize  the  taking  of  such  evidence  from  the  jury. 
Missouri,  O.  &  G.  Ry.  Co.  v.  Diamond,  48  Okl.  424,  150  P.  175. 

37  Hume  v.  Atkinson,  54  P.  15,  8  Kan.  App.  18. 

(633) 


DEPOSITIONS  AND  AFFIDAVITS  (Ch.  12 


CHAPTER  XII 

DEPOSITIONS  AND  AFFIDAVITS 

Sections 

734-774.     Article  I.— Depositions. 

775-780.    Article  II — Affidavits. 


ARTICLE  I 

DEPOSITIONS 

Sections 

734.  Defined. 

735.  When  taken. 

736.  Subpoena  for  deposition. 

737.  Contempt — Discharge. 

738.  Abuse  of  process. 

739.  Stipulation. 

740.  Before  whom  taken. 

741.  Depositions  taken  out  of  state. 

742.  Officer  disinterested. 

743.  Commission. 

744.  Notice. 

745-  Publication  notice. 

746.  Contempt— Refusal  to  testify. 

747.  Writing  of  depositions.  . 

748.  Filing. 

749.  Authentication.  ' 

750.  Certificate. 

751.  When  to  be  filed. 

752.  Fees  for  taking. 
753-  Exceptions. 

754.  Requisites  and  sufficiency. 

755-  To  be  decided  before  trial. 

756.  Incompetency  and  irrelevancy. 

757.  Motion  to  suppress — Form. 

758.  Objections  at  hearing. 

759.  Waiver  of  objections- 

760.  Perpetuating  testimony. 

761.  Petition— Form. 

762.  Order   for  examining   witnesses — Form. 

763.  Cross-interrogatories. 

764.  Before  whom  taken. 

765.  Filing  and  use — Cpsts. 

766.  Error  waived  by  not  excepting. 

767.  When  deposition  may  be  used. 

768.  Unavailability  of  witness. 

769.  Deposition  as  evidence. 

770.  May  be  read  when. 
(634) 


Art.  2)  DEPOSITIONS  §§  734-735 

Sections 

771.  Admission  of  part  of  deposition. 

772.  Copies. 

773-     Interpleader. 
774.     Forms. 

§  734.     Defined 

"A  deposition  is  a  written  declaration,  tinder  oath,  made  upon 
notice  to  the  adverse  party  for  the  purpose  of  enabling  him  to  at- 
tend and  cross-examine,  or  upon  written  interrogatories."  *• 

It  may  be  given  in  narrative  form.2 

§  735.     When  taken 

"Either  party  may  commence  taking  testimony  by  deposition  at 
any  time  after  service  of  summons  upon  the  defendant."  3 

Depositions  may  be  taken  during  the  term  at  which  the  case  is 
set  for  trial.* 

It  is  not  error  for  a  notary  before  whom  a  deposition  is  to  be 
taken  to  adjourn  the  taking  of  said  deposition  at  the  time  and  place 
named  in  the  notice  for  taking  the  same  until  the  next  day,  at  the 
same  place  and  hour,  at  the  request  of  the  attorney  of  the  party 
taking  the  deposition,5  though  the  opposing  party  does  not  appear. (i 

Where  the  next  day  is  Sunday  or  a  legal  holiday,  the  adjourn- 
ment should  be  to  the  next  day  thereafter;  and  this  is  true,  though 
both  Sunday  and  a  legal  holiday  intervene.7  But  the  deposition 
must  be  taken  in  accord  with  the  notice  or  stipulation.  For  ex- 
ample, it  is  error  to  admit  in  evidence  a  deposition  taken  on  the 
5th  day  of  the  month  instead  of  on  the  3d,  the  time  agreed  on, 
when  there  is  nothing  to  show  a  commencement  of  the  deposition 
before  the  5th,  or  that  there  was  any  continuance  from  the  3d  to 
the  5th.8 

1  Rev.  Laws  1910,  §  5069. 

2  N.  S.  Sherman  Machine  &  Iron  Works  v.  E.  D.  Cole  Mfg.  Co.,  51  Okl.  353, 
151  P.  1181. 

s  Rev.  Laws  1910,  §  5074. 

*  Northrup  v.  Hottenstein,  16  P.  445,  38  Kan.  263 ;    In  re  Merkle,  40  Kan. 
27,  19  Pac.  401 ;   St.  Louis  &  S.  F.  Ry.  Co.  v.  Morse,  16  P.  452,'  38  Kan.  271. 
s  Babb  v.  Aldrieh,  25  P.  558,  45  Kan.  218. 
6  Kelly  v.  Martin,  36  P.  705,  53  Kau.  380. 
T  Leach  v.  Leach,  27  P.  131,  46  Kan.  724. 
s  Peterson  v.  Albach,  32  P.  917,  51  Kan.  150. 

(635) 


§§  736-740  DEPOSITIONS  AND  AFFIDAVITS  (Ch.  12 

i 

§  736.     Subpoena  for  deposition 

"When  the  attendance  of  the  witness,  before  any  officer  author- 
ized to  take  depositions,  is  required,  the  subpoena  shall  be  issued  by 
such  officer."  9 

§  737.     Contempt — Discharge 

A  witness  "imprisoned  by  an  officer  before  whom  his  deposition 
is  being  taken,  may  apply  to  a  judge  of  a  court  of  record,  who 
shall  have  power  to  discharge  him,  if  it  appears  that  his  imprison- 
ment is  illegal."  10 

§  738.     Abuse  of  process 

Taking  the  deposition  of  a  party  in  a  pending  case  merely  to 
ascertain  in  advance  what  his  testimony  will  be,  and  not  for  the 
purpose  of  using  the  same  as  evidence,  is  an  abuse  of  judicial  au- 
thority and  process;  and  a  party  committed  for  refusing  to  give 
his  deposition  in  such  a  case  will  be  released  on  habeas  corpus.11 

§  739.     Stipulation 

A  stipulation  of  facts  to  avoid  the  taking  of  depositions  does  not 
enlarge  or  change  the  issues  made  by  the  pleadings.12 

§  740.     Before  whom  taken 

"Depositions  may  be  taken  in  this  state  before  a  judge  or  clerk 
of  a  court  of  record,  before  a  county  clerk,  justice  of  the  peace,  no- 
tary public,  or  before  a  master  commissioner,  or  any  person  em- 
powered by  a  special  commission;  but  depositions  taken  in  this 
state,  to  be  used  therein,  must  be  taken  by  an  officer  or  person 
whose  authority  is  derived  within  the  state."  13 

"The  [Corporation]  Commission  is  authorized  to  have  deposi- 
tions taken  upon  the  application  of  either  party  to  any  cause  pend- 
ing before  it,  or  upon  its  own  motion;  and  to  designate  a  person 
to  take  depositions  under  such  rules  and  regulations  as  may  be 
prescribed  by  the  commission:  Provided,  that  any  party  to  a 

»  Rev.  Laws  1910,  §  5053. 

10  Rev.  Laws  1910,  §  5060. 

11  In  re  Davis,  16  P.  790,  38  Kan.  408;    In  re  Cubberly,   18  P.   173,  39 
Kan.  291. 

12  Brinkmeier  v.  Missouri  Pac.  Ry.  Co.,  105  P.  221,  81  Kan.  101,  judgment 
affirmed  32  S.  Ct.  412,  224  U.  S.  268,  56  L.  Ed.  758. 

is  Rev.  Laws  1910,  §  5075. 

(63G) 


Art.  1)  DEPOSITIONS  §§  741- T14 

proceeding  before  the   commission   may  take   depositions   in  the 
same  manner  as  in  actions  pending  in  the  courts  of  the  state."  14 

§  741.     Depositions  taken  out  of  state 

"Depositions  may  be  taken  out  of  this  state  by  a  judge,  justice 
or  chancellor  of  any  court  of  record,  a  justice  of  the  peace,  notary 
public,  mayor  or  chief  magistrate  of  any  city  or,  town  corporate, 
or  any  person  authorized  by  a  special  commission  from  this 
state."  15 

§  742.     Officer  disinterested 

"The  officer  before  whom  depositions  are  taken  must  not  be  a 
relative  or  attorney  of  either  party,  or  otherwise  interested  in  the 
event  of  the  action  or  proceeding."  16 

A  notary  public  is  not  disqualified  to  take  depositions  by  reason 
of  the  fact  alone  that  he  is  the  bookkeeper  of  the  plaintiff.1'7 

§  743.     Coimmission 

"Any  court  of  record  of  this  state,  or  any  judge  thereof,  is  au- 
thorized to  grant  a  commission  to  take  depositions  within  or  with- 
out the  state.  The  commission  must  be  issued  to  a  person  or  per- 
sons therein  named,  by  the  clerk,  under  the  seal  of  the  court  grant- 
ing the  same ;  and  depositions  under  it  must  be  taken  upon  written 
interrogatories,  unless  the  parties  otherwise  agree."  18 

§  744.     Notice 

"Prior  to  the  taking  of  any  deposition,  unless  taken  under  a 
special  commission,  a  written  notice,  specifying  the  action  or  pro- 
ceeding, the  name  of  the  court  or  tribunal  in  which  it  is  to  be  used, 
and  the  time  and  place  of  taking  the  same,  shall  be  served  upon 
the  adverse  party,  his  agent  or  attorney  of  record,  or  left  at  his 
usual  place  of  business  or  residence.  The  notice  shall  be  served  so 
as  to  allow  the  adverse  party  sufficient  time,  by  the  usual  route  of 
travel,  to  attend,  and  one  day  for  preparation,  exclusive  of  Sunday, 

i*  Rev.  Laws  1910,  §  1203. 

is  Rev.  Laws  1910,  §  5076. 

le  Rev.  Laws  1910,  §  5077. 

17  Palmer  v.  Hudson  River  State  Hospital,  61  P.  506,  10  Kan.  App.  98. 

is  Rev.  Laws  1910,  §  5078. 

(637) 


§    744  DEPOSITIONS   AND  AFFIDAVITS  (Ch.  12 

and  the  day  of  service;  and  the  examination  may,  if  so  stated  in 
the  notice,  be  adjourned  from  day  to  day."  19 

Where  the  caption  of  a  notice  to  take  depositions  includes  the 
name  of  the  court  and  the  title  of  the  action,  and  the  body  of  the 
notice  specifies  that  the  deposition  to  be  taken  is  "to  be  used  on 
the  trial  of  the  above-entitled  action,"  it  substantially  complies  with 
the  requirement  that  the  notice  shall  specify  the  action  or  proceed- 
ing, and  the  name  of  the  court  in  which  it  is  to  be  used.20 

Depositions  taken  upon  the  notice  prescribed  are  admissible 
whether  taken  within  or  without  the  state.21 

A  notice  to  take  depositions  need  not  set  out  the  names  of  the 
witnesses.22 

The  adverse  party  has  a  right  to  be  personally  present  at  the  tak- 
ing of  any  deposition  pursuant  to  notice.23 

A  notice  which  would  require  a  party  to  start  at  midnight  is  in- 
sufficient,24 as  is  also  a  notice  requiring  a  party  to  use  the  day  on 
which  the  deposition  is  to  be  taken  in  traveling  to  the  place  of 
taking.25 

Where  notices  are  served  to  take  depositions  at  two  or  more 
places  on  the  same  day,  the  parties  served  may  attend  at  either 

is  Rev.  Laws  1910,  §  5079. 

In  an  action  against  a  railroad  company  for  the  death  of  a  stallion,  occa- 
sioned by  injuries  received  during  shipment,  a  notice  of  taking  depositions  as 
to  the  condition  of  the  stallion  before  shipment,  served  on  a  station  agent, 
who  has  no  authority  in  or  connection  with  the  cause,  is  not  such  notice  as 
is  contemplated  by  Code,  §  352,  providing  that,  prior  to  the  taking  of  any 
deposition,  notice  shall  be  served  on  "the  adverse  party,  his  agent  or  attorney 
of  record."  Atchison,  T.  &  S.  F.  R.  Co.  v.  Sage,  31  P.  140,  49  Kan.  524. 

A  notice  to  take  depositions  is  not  "process,"  within  the  Kansas  Code  of 
Civil  Procedure,  which  provides  (section  68a)  that  every  railroad  company 
shall  designate  some  person  residing  in  each  county  into  which  the  line  runs, 
on  whom  "all  process  and  notices  issued  by  any  court"  may  be  served,  and 
(section  68c)  that  on  failure  to  designate  such  person  "such  process"  may  be 
served  on  any  ticket  agent  in  the  county;  and  a  notice  to  take  depositions, 
served  on  a  ticket  agent,  is  insufficient.  Atchison,  T.  &  S.  F.  R.  Co.  v.  Sage, 
31  P.  140,  49  Kan.  524. 

20  Sparks  v.  Sparks,  32  P.  892,  51  Kan.  195. 

21  J.  M.  Hoard,  Jr.,  Co.  v.  Grand  Rapids  Showcase  Co.  (Okl.)  173  P.  844. 

22  Dietrich  v.  Dr.  Koch  Vegetable  Tea  Co.,  56  Okl.  636,  156  P.  188. 
23Gillis  v.  First  Nat.  Bank  of  Frederick,  47  Okl.  411,  148  P.  994;    Evans 

v.  Rothschild,  39  P.  701,  54  Kan.  747. 

24  Helms  v.  Southwest  Missouri  R.  Co.,  152  P.  632,  96  Kan.  568. 

25  Hartley  v.  Chidester,  13  P.  578,  36  Kan.  363. 

(638) 


Art.  1)  DEPOSITIONS  §§  744-745 

place  and  disregard  the  other  notices,  and  depositions  taken  at 
places  where  he  does  not  attend  should  be  suppressed.28 

Mere  irregularities  may  be  waived.  For  example,  a  deposition 
taken  in  the  absence  of  the  opposing  party,  a  short  distance  from 
the  place  stated  in  the  notice,  will  not  be  suppressed,  where  it  ap- 
pears that  on  the  same  day  the  counsel  for  the  opposing  party  ap- 
peared, and  by  consent  of  all  the  deposition  was  opened,  and  the 
witness  recalled  and  cross-examined.27 

The  designation  of  the  place  where  the  depositions  are  to  be 
taken  is  sufficient,  where  it  so  describes  it  that  it  can  be  identified 
by  the  exercise  of  reasonable  diligence.28  It  has  been  held  that, 
in  the  absence  of  any  showing  of  prejudice,  a  notice  to  take  depo- 
sitions that  designates  the  place  as  "at  the  office  of  R.  L.  McDou- 

gal,  in  the  city  of  Marysville,  in  the  county  of ,  in  the  state 

of  Missouri,"  was  sufficient.29 

§  745.     Publication  notice 

"When  the  party  against  whom  the  deposition  is  to  be  read  is 
absent  from  or  a  nonresident  of  the  state,  and  has  no  agent  or 
attorney  of  record  therein,  he  may  be  notified  of 'the  taking  of  the 
deposition  by  publication.  The  publication  must  be  made  three 
consecutive  weeks,  in  some  newspaper  printed  in  the  county  where 
the  action  or  proceeding  is  pending,  if  there  be  any  printed  in  such 
county,  and  if  not,  in  some  newspaper  printed  in  this  state,  of 
general  circulation  in  the  county.  The  publication  must  contain 
all  that  is  required  in  a  written  notice ;  and  may  be  proved  in  the 
manner  prescribed  for  service  by  publication  at  the  commence- 
ment of  the  action."  30 


26  Gillis  v.  First  Nat.  Bank  of  Frederick,  47  Okl.  411,  148  P.  994;    Evans 
v.  Rothschild,  39  P.  701,  54  Kan.  747. 

27  Southern  Kansas  Ry.  Co.  v.  Robbins,  23  P.  113,  43  Kan.  145. 

28  The  fact  that  the  notice  of  a  deposition  specified  that  it  would  be  taken 
at  the  office  of  "Dan.  Ray,"  whereas  the  deposition  showed  that  it  was-  taken 
at  the  office  of  "Daniel  E.  Wray,"  does  not  render  the  notice  misleading  so 
as  to  invalidate  the  deposition  where  Wray  was  identified  in  the  notice  as 
an  attorney  at  law  of  the  place  where  the  deposition  was .  to  be  taken,  and 
there  was  no  other  person  of  that  name  or  having  one  s-ounding  like  it  in 
that  place.     Sparks  v.  Sparks,  32  P.  892,  51  Kan.  195. 

29  Atcbison,  T.  &  S.  F.  R.  Co.  v.  Pearson,  49  P.  681,  6  Kan.  App.  825. 
so  Rev.  Laws  1910,  $  5080. 

(639) 


§§  746-748  DEPOSITIONS  AND  AFFIDAVITS  (Ch.  12 

§  746.     Contempt — Refusal  to  testify 

A  witness  may  be  punished  for  contempt  for  refusing  to  testi- 
fy or  answer  questions  propounded  to  him  on  the  taking  of  his 
deposition,  though  he  act  on  the  advice  of  counsel.31  The  power 
to  punish  for  contempt  in  such  cases  is  vested  in  justices  of  the 
peace  and  judges  of  courts  of  record,  including  judges  of  county 
courts.32 

§  747.     Writing  of  depositions 

"The  deposition  shall  be  written  in  the  presence  of  the  officer 
taking  the  same,  either  by  the  officer,  the  witness  or  some  disin- 
terested person,  and  subscribed  by  the  witness,  or  the  deposition 
may  be  taken  in  shorthand  by  the  officer  or  some  disinterested  per- 
son, and  if  so  taken  and  after  being  transcribed  shall  be  subscribed 
by  the  witness  as  though  taken  in  long  hand  in  the  first  in- 
stance." 33 

§  748.     Filing 

"The  deposition,  so  taken,  shall  be  sealed  up  and  indorsed  with 
the  title  of  the  cause  and  the  name  of  the  officer  taking  the  same, 
and  by  him  addressed  and  transmitted  to  the  clerk  of  the  court 
where  the  action  or  proceeding  is  pending.  It  shall  remain  under 
seal  until  opened  by  the  clerk  by  order  of  the  court,  or  at  the  re- 
quest of  a  party  to  the  action  or  proceeding,  or  his  attorney."  3* 

Where  all  legal  requisites  have  been  complied  with  in  sealing 
and  indorsing  depositions  to  be  transmitted  by  mail,  and  where 
such  depositions  are  actually  received  by  the  district  clerk  with- 
out being  separated  or  mutilated,  the  mere  fact  that  the  envelope 
containing  such  depositions  has  been  broken  or  injured  during 
transmission  will  not  justify  a  court  in  suppressing  the  deposi- 
tions.35 

Where  an  envelope  containing  a  deposition  is  indorsed  with  the 

si  In  re  Merkle,  19  P.  401,  40  Kan.  27. 

32  Waugh  v.  Dibbens,  61  Okl.  221,  160  P.  589,  L.  R/A.  1917B,  360. 

ss  Rev.  Laws  1910,  §  5081. 

34  Rev.  Laws  1910,  §  5082. 

Depositions,  the  taking  of  which  was  begun  before  and  completed  after  ad- 
mission of  state,  held  properly  filed  with  the  clerk  of  the  district  court  to 
which  the  action  was  transferred.  Scott  v.  Vulcan  Iron  Works  Co.,  122  P. 
1S6,  31  Okl.  334. 

as  Commercial  Nat.  Bank  v.  Atkinson,  64  P.  617,  62  Kan.  775. 

(640) 


Art.  1)  DEPOSITIONS  §§  749-750 

names  of  the  plaintiff  and  defendant,  and  that  of  the  officer  before 
whom  it  was  taken,  and  is  addressed  to  the  clerk  of  the  district 
court  where  the  case  is  pending,  the  title  and  cause  are  sufficiently 
described.86 

§  749.    Authentication 

"Depositions  taken  pursuant  to  this  article,  by  any  judicial  or 
other  officer  herein  authorized  to  take  depositions,  having  a  seal 
of  office,  whether  resident  in  this  state  or  elsewhere,  shall  be  ad- 
mitted in  evidence,  upon  the  certificate  and  signature  of  such  offi- 
cer, under  the  seal  of  the  court  of  which  he  is  an  officer,  or  his 
official  seal ;  and  no  other  or  further  act  of  authentication  shall  be 
required.  If  the  officer  taking  the  same  have  no  official  seal,  the 
deposition,  if  not  taken  in  this  state,  shall  be  certified  and  signed 
by  such  officer,  and  shall  be  further  authenticated,  either  by  parol 
proof,  adduced  in  court,  or  by  the  official  certificate,  and  seal  of 
the  secretary  of  state  or  other  officer  of  the  state  keeping  the  great 
seal  thereof,  or  of  the  clerk  or  prothonotary  of  any  court  having  a 
seal,  attesting  that  such  judicial  or  other  officer  was,  at  the  time 
of  taking  the  same,  duly  qualified,  and  acting  as  such  officer.  But 
if  the  deposition  be  taken  within  this  state  by  an  officer  having  no 
seal,  or  within  or  without  this  state  under  a  special  commission, 
it  shall  be  sufficiently  authenticated  by  the  official  signature  of 
the  officer  or  commissioner  taking  the  same." 87 

§  750.     Certificate 

"The  officer  taking  the  deposition  shall  annex  thereto  a  certifi- 
cate, showing  the  following  facts:  That  the  witness  was  first 
sworn  to  testify  the  truth,  the  whole  truth,  and  nothing  but  the 
truth ;  that  the  deposition  was  reduced  to  writing  or  taken  in  short- 
hand and  transcribed  by  some  proper  person,  naming  him;  that 
the  deposition  was  subscribed  in  the  presence  of  the  officer  certi- 
fying thereto ;  that  the  deposition  was  taken  at  the  time  and  place 
specified  in  the  notice."  88 

SB  Whittaker  v.  Voorhees,  15  P.  874.  38  Kan.  71 :  Babb  v.  Aldrich,  25  P.  558, 
45  Kan.  218. 

ST  Rev.  Laws  1910,  §  5085. 

ss  Rev.  Laws  1930,  §.  5086. 

Where  a  notice  states  that  the  deposition  will  be  taken  at  the  storehouse  of 
M.,  in  Bismarck,  Dakota  territory,  on  the  13th  day  of  April,  between  the 

HON.PL.&PRAC.— 41  (641) 


§§   750-751  DEPOSITIONS   AND  AFFIDAVITS  (Ch.  12 

The  certificate  is  defective,  requiring  the  deposition  to  be  sup- 
pressed, where  it  fails  to  show  the  place  of  taking  and  the  adverse 
party  was  not  present,39  where  it  shows,  relative  to  the  oath  tak- 
en, merely  that  deponents  were  sworn  to  testify  the  whole  truth 
of  their  knowledge  touching  the  matter  in  controversy,40  and 
where  it  fails  to  state  by  whom  the  deposition  was  reduced  to  writ- 
ing.41 But  mere  informalities  will  be  disregarded,  and  will  not 
require  that  the  deposition  be  suppressed,  where  the  adverse  par- 
ty appeared  by  counsel  at  the  taking  of  the  deposition  and  cross- 
examined  the  witness.42 

Failure  to  comply  with  additional  provisions  made  by  stipulation 
of  the  parties  will  not  require  that  the  depositions  be  suppressed.43 
Thus,  that  depositions  were  taken  between  8  a.  m.  and  6  p.  m.,  in- 
stead of  9  a.  m.  and  4  p.  m.,  as"  stipulated  in  agreement,  was  not  a 
ground  for  their  suppression.44 

Testimony  "on  information  and  belief"  is  not  sufficient  to  over- 
come the  certificate  of  a  notary  public  before  whom  a  deposition  was 
taken  that  he  was  not  an  attorney  for  either  party,  or  otherwise  in- 
terested in  the  case.46 

§  751.    When  to  be  filed 

"Every  deposition  intended  to  be  read  in  evidence  on  the  trial, 
must  be  filed  at  least  one  day  before  the  day  of  trial."  46 

This  means  one  clear  day,  both  the  day  on  which  they  are  filed 
and  the  day  of  trial  being  excluded.47  Where  depositions  are  re- 
hours  of  8  a.  m.  and  6  p.  m.,  and  the  certificate  attached  to  the  deposition 
states  that  it  was  taken  at  the  store  of  M.,  in  Bismarck,  Dakota  territory, 
on  the  13th  day  of  April,  as  specified  in  the  notice  attached,  held,  that  "as 
specified  in  the  notice"  relates  to  the  place,  the  day,  and  the  hours  of  the  day, 
as  stated  in  the  notice.  Whittaker  v.  Voorhees,  15  P.  874,  38  Kan.  71. 

39  Dunham  v.  Holloway,  2  Okl.  78,  35  P.  949. 

40  Western  Union  Tel.  Co.  v.  Collins,  25  P.  187,  45  Kan.  88,  10  L.  R.  A.  515 ; 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Pearson,  49  Pac.  681,  6  Kan.  App.  825. 

41  Atchison,  T.  &,  S.  F.  R.  Co.  v.  Pearson,  49  P.  681,  6  Kan.  App.  825. 

42  St.  Louis  &  S.  F.  Ry.  Co.  v.  French,  44  P.  12,  56  Kan.  584. 

43  Knapp  v.  American  Hand-Sewed  Shoe  Co.,  66  P.  996,  63  Kan.  698. 

44  Scott  v.  Vulcan  Iron  Works  Co.,  122  P.  186,  31  Okl.  334. 

45  Wagstaff  v.  Challiss,  1  P.  631,  31  Kan.  212. 

46  Rev.  Laws  1910,  §  5088;   Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Jackson,  63  Okl 
32,  162  P.  823. 

47  Garvin  v.  Jennerson,  20  Kan.  371. 

(642) 


Art.l)  DEPOSITIONS  §§  751-753 

ceived  in  time,  and  the  clerk  fails  to  mark  them  "Filed,"  they  should 
be  received  in  evidence,  if  otherwise  regular.48 

Depositions  may  be  treated  as  affidavits,  and  used  in  evidence  in 
a  hearing  upon  a  motion,  although  they  have  not  been  on  file  one 
day  before  the  time  of  such  hearing.49 

§  752.     Fees  for  taking 

"The  following  fees  shall  be  allowed  for  taking  depositions  in  this 
state,  viz. :  Swearing  each  witness,  ten  cents ;  for  each  subpoena, 
attachment  or  order  of  commitment,  fifty  cents ;  for  each  hundred 
words  contained  in  such  deposition  and  certificate,  fifteen  cents, 
and  no  more ;  and  such  officer  may  retain  the  same  until  such  fees 
are  paid ;  such  officer  shall  also  tax  the  costs  of  the  sheriff  "or 
other  officer  who  shall  serve  the -process  aforesaid,  and  fees  of  the 
witnesses,  and  may,  also,  if  directed  by  the  person  entitled  thereto, 
retain  such  deposition  until  the  said  fees  are  paid."  80 

There  is  no  merit  in  exceptions  to  a  deposition  on  the  ground  that 
the  attorney  procuring  its  taking  inclosed  therewith  a  letter  con- 
taining a  statement  of  the  fees  to  the  notary  public,  witnesses,  and 
stenographer.51 

§  753.     Exceptions 

"Exceptions  to  depositions  as  a  whole  shall  be  in  writing,  spec- 
ifying the  grounds  of  objections,  and  filed  with  the  papers  in  the 
cause  before  the  commencement  of  the  trial."  52 

It  is  no  excuse  for  failure  to  comply  with  this  statute  that  counsel 
for  the  party  taking  the  deposition  opened  same  and  has  ever  since 
had  it  in  his  possession.63 

An  objection  to  a  deposition,  because  a  United  States  revenue 
stamp  is  not  attached,  must  be  made  in  writing  and  filed  before  the 
commencement  of  the  trial,54  as  must  exceptions  to  depositions  on 
the  ground  that  the  notice  did  not  properly  specify  the  action.55 

Where  depositions  are  filed  on  day  of  but  before  trial,  as  known 

48  Hogendobler  v.  Lyon,  12  Kan.  276. 

49  Bank  of  Santa  Fe  v.  Haskell  County  Bank,  53  P.  132,  59  Kan.  354. 
eo  Rev.  Laws  1910,  §  5089. 

si  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Jackson,  63  Okl.  32,  162  P.  823. 

»2  Rev.  Laws  1910,  §  5090. 

63  Bagg  v.  Shoenfelt  (Okl.)  176  P.  511. 

6*  MacRae  v.  Kansas  City  Piano  Co.,  68  P.  54.  64  Kan.  580. 

BS  Clark  v.  Ellithorpe,  51  P.  940,  7  Kan.  App.  337. 

(643) 


§§  754-756  DEPOSITIONS  AND  AFFIDAVITS  (Ch.  12 

to  party  against  whom  they  are  to  be  used,  and  where  both  parties 
announce  ready,  and  such  party  does  not  request  additional  time  to 
file  exception,  he  waives  time  allowed  by  statute,  and  a  formal 
verbal  objection  when  depositions  are  offered  is  properly  over- 
ruled.56 

§  754.    Requisites  and  sufficiency 

Where  a  party  desires  to  object  to  a  deposition,  he  must  spec- 
ify each  question  or  answer  on  which  he  desires  a  ruling,  and  the 
particular  grounds  thereof,  unless  he  objects  to  the  admissibility  of 
the  deposition  as  a  whole,  in  which  case  he  should  specify  the 
grounds  therefor;  a  general  objection  is  insufficient  to  exclude  the 
entire  deposition  because  a  part  was  incompetent.67 

An  objection  to  a  deposition,  based  on  the  fact  that  the  name  of 
the  officer  taking  it  is  not  indorsed  on  the  envelope,  containing  it, 
is  not  pointed  out  by  a'n  objection  that  the  deposition  was  not  sealed 
up  by  the  officer  taking  it.68. 

§  755.    To  be  decided  before  trial 

"The  court  shall,  on  motion  of  either  party,  hear  and  decide  the 
questions  arising  on  exceptions  to  depositions  as  a  whole,  before 
the  commencement  of  the  trial."69 

§  756.    Incompetency  and  irrelevancy 

Objections  to  the  taking  of  depositions  other  than  for  incompe- 
tency  and  irrelevancy  are  waived,  unless  made  and  filed  before  the 
trial;  60  but  the  objections  of  incompetency  and  irrelevancy  may  be 
made  on  the  trial,  without  written  objection  filed  before  the  trial.61 

Such  objections  should  be  heard  and  decided  usually  during  the 
progress  of  the  trial.  The  court  can  properly  refuse  to  hear  them 
before  the  trial  commences.62 

By  appearing  at  the  taking  of  the  deposition  of  an  adverse  wit- 
ness, and  not  objecting  to  his  testimony  on  the  ground  that  it  is  in- 

56  Wichita  Falls  &  N.  W.  Ry.  Co.  v.  Davern  (Okl.)  177  P.  909. 

57  State  v.  Simmons.  88  P.  57,  74  Kan.  799. 

cs  Neosho  Valley  Inv.  Co.  v.  Hannum,  66  P.  631,  63  Kan.  621. 
6»  Rev.  Laws  1910,  §  5092. 

eo  Root  v.  Coyle,  82  P.  648,  15  Okl.  574;  Rockford  Ins.  Co.  v.  Farmers' 
State  Bank,  31  P.  1063,  50  Kan.  427. 

ex  In  re  Schaffner's  Estate,  141  P.  251,  92  Kan.  570. 
«2  Tays  v.  Carr,  14  P.  456,  37  Kan.  141. 

(644) 


Art.  1)  DEPOSITIONS  §§  756-757 

competent,  a  party  does  not  waive  the  right  to  make  such  objection 
at  the  trial  of  the  case,  when  such  deposition  is  offered  in  evi- 
dence.68 

An  objection  to  the  incompetency  of  a  witness  making  a  deposi- 
tion, not  reaching  the  incompetency  or  irrelevancy  of  the  evidence 
given  by  him,  should  not  be  heard  where  no  written  exception  to 
the  deposition  is  filed.64 

§  757.     Motion  to  suppress — Form 

A  motion  to  suppress  depositions  must  be  in  writing  and  be  made 
before  trial.  It  is  error  to  entertain  such  a  motion  after  the  jury 
has  been  impaneled  and  sworn.65  A  motion  to  suppress  a  deposi- 
tion must  clearly  point  out  the  objection.66 

Depositions  will  not  be  suppressed,  because  not  certified,  sealed, 
indorsed,  transmitted,  and  opened  as  required  by  law,  unless  such 
grounds  are  set  up  in  motion  to  suppress,  and  unless  record  sup- 
ports such  ground.67 

Where  portions  of  a  deposition  are  admissible,  the  deposition 
should  not  be  suppressed; 68  nor  should  a  deposition  be  suppressed 
because  the  officer  taking  it  does  not  certify  that  he  is  not  related 
to  either  of  the  parties,  unless  there  is  some  affirmative  showing  of 
such  relationship.69 

It  has  been  held  not  error  to  overrule  a  motion  to  quash  a  second 
deposition,  where  it  did  not  appear  that  the  question  and  answer  in 
the  original  deposition  differed  from  those  in  defendant's  possession 
and  used  in  cross-examination  at  the  trial.70 

Where  a  deposition  is  taken  without  notice,  and  the  opposing 
party  cross-examines  the  witness,  and  the  testimony  is  taken  by  a 
stenographer  and  transcribed  and  read  by  the  witness  and  sub- 
scribed in  the  presence  of  the  officer,  no  objection  being  made  to 
the  manner  of  taking  the  deposition  that  the  deposition  was  not 

es  Griffith  v.  McCandless,  59  P.  729,  9  Kan.  App.  794. 
s*  Crebbin  v.  Jarvis,  67  P.  531,  64  Kan.  885. 

65  St.  Louis  &  S.  F.  Ry.  Co.  v.  Morse,  16  P.  452,  38  Kan.  271;    Welch  v. 
Church,  55  Okl.  600,  155  P.  620;   Bagg  v.  Shoenfelt  (Okl.)  176  P.  511. 
ee  Neosho  Valley  Inv.  Co.  v.  Hannum,  66  P.  631,  63  Kan.  621. 

67  Oklahoma  Hay  &  Grain  Co.  v.  T.  D.  Randall  &  Co.  (Okl.)  168  P.  1012. 

68  Griggs  v.  Corson,  81  P.  471,  71  Kan.  884. 

69  Eldridge  v.  Compton,  30  Okl.  170,  119  P.  1120,  Ann.  Cas.  1913B,  1055. 
™  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Jackson,  63  Okl.  32,  162  P.  823. 

(645) 


§§  757-758  DEPOSITIONS  AND  AFFIDAVITS  (Ch.  12 

written  in  the  officer's  presence  will  be  deemed  waived,  and  cannot 
be  raised  for  the  first  time  to  suppress  the  deposition.71 

Overruling  a  motion,  presented  after  the  jury  was  sworn,  to  sup- 
press depositions  on  the  ground  that  the  evidence  was  incompetent 
and  hearsay,  and  reserving  a  ruling  on  the  evidence  till  offered  at 
the  trial,  is  proper  practice.72 

MOTION  TO   SUPPRESS  DEPOSITION 

(Caption.) 

Conies  now  the  above  named  defendant,  C.  D.,  and  moves  the 
court  to  suppress  the  deposition  of  E.  F.,  taken  on  behalf  of  the 

plaintiff,  A.  B.,  and  filed  herein  on  the day  of ,  19 — , 

for  the  following  reasons,  to  wit: 

1.  That  the  notice  to  take  said  deposition  was  not  served  on  this 
defendant  in  the  manner  required  by  law. 

2.  That  sufficient  time  was  not  allowed  between  the  time  of  the 
alleged  service  and  the  taking  of  said  deposition  to  allow  this  de- 
fendant to  attend,  by  the  usual  route  of  travel,   and  one  day   for 
preparation,    exclusive    of    Sunday    and    the    day    of    such    alleged 
service. 

3.  That  said  deposition  shows  that  it  was  not  taken  on  the 

day  of ,  19 — ,  the  date  stated  in  the  notice,  but  was  taken 

one  day  later,  on  the •  day  of ,  19 — . 

4.  That  the  certificate  to  said  deposition  does  not  show  that  said 
witness,  E.  F.,  was  first  duly  sworn  to  testify  the  truth,  the  whole 
truth,  and  nothing  but  the  truth. 

(Other  reasons,  if  any.)  X.  Y.,  Attorney  for  Defendant. 

§  758.     Objections  at  hearing 

"Where  the  adverse  party  appears  at  the  taking  of  the  deposition, 
no  objections  to  questions  propounded  therein  shall  be  considered 
unless  stated  at  the  time  and  set  forth  in  the  deposition :  Provided, 
that  it  may  be  otherwise  stipulated  by  the  parties  at  the  time  of 
taking  the  deposition,  and  such  stipulation  set  forth  in  the  deposition 
and  certified  to  by  the  officer  taking  the  same."  7S 

TiTrower  v.  Roberts,  30  Okl.  215,  120  P.  617. 
72  Hilt  v.  Griffin,  90  P.  SOS,  77  Kan.  783. 
is  Rev.  Laws  1910,  §  5091. 

(646) 


Art.  1)  DEPOSITIONS  §§  758-761 

An  objection  on  the  trial  to  the  introduction  of  evidence  contained 
in  a  deposition  must  state  the  particular  evidence  objected  to.7* 

Objection  to  questions  and  answers  in  deposition,  taken  when 
objector  did  not  appear  at  the  taking  thereof,  should  be  interposed 
when  question  or  answer  is  offered  in  evidence  by  the  taker.75 
But  where  both  parties  were  represented  at  the  taking,  and  there 
was  no  objection  to  the  questions  and  answers,  objections  made 
to  the  questions  at  the  trial  should  not  be  entertained.76 

§  759.     Waiver  of  objections 

Where  a  deposition  is  taken  in  the  absence  of  the  opposing  par- 
ty, nothing  is  waived,  and  the  absent  party  has  the  right  to  presume 
that  the  deposition  will  be  taken  in  strict  conformity  with  the 
statute.77 

Where  a  deposition  has  been  read  in  evidence  at  one  trial,  with- 
out objection,  it  is  too  late  thereafter  to  raise  purely  technical  objec- 
tions apparent  on  the  face  of  the  deposition  prior  to  the  first  trial.78 

Where  a  plaintiff  in  an  action  takes  testimony  by  deposition,  and 
much  of  such  testimony  is  hearsay,  and  incompetent,  and  the  de- 
fendant offers  and  reads  such  deposition  to  the  jury,  he  cannot  be 
heard  to  complain,  pf  the  testimony  which  he  himself  offers.79 

§  760.     Perpetuating  testimony 

The  perpetuation  of  testimony  is  permitted  only  to  prevent  a 
failure  of  justice.80 

"The  testimony  of  a  witness  may  be  perpetuated  in  the  manner 
hereinafter  provided."  81 

§  761.    Petition — Form 

"The  applicant  shall  file  in  the  office  of  the  clerk  of  the  district 
court  a  petition,  to  be  verified,  in  which  shall  be  set  forth,  specially, 
the  subject-matter  relative  to  which  testimony  is  to  be  taken,  and 
the  names  of  the  persons  interested,  if  known  to  the  applicant;  and 

T*  Gano  v.  Wells,  14  P.  251,  36  Kan.  688. 

75  Hart  v.  Frost  (Okl.)  175  P.  257. 

76  Oklahoma  State  Bank  v.  Buzzard  (Okl.)  175  P.  750. 

77  Atchison,  T.  &  S.  F.  R.  Co.  v.  Pearson,  49  P.  681,  6  Kan.  App.  825. 

78  Eldridge  v.  Compton,  30  Okl.  170,  119  P.  1120,  Ann.  Gas.  1913B,  1055. 
7»  Roller  v.  James,  49  P.  630,  6  Kan.  App.  919. 

so  Guinan  v.  Readdy,  79  Okl.  Ill,  191  P.  602. 
si  Rev.  Laws  1910,  §  5116. 

(647) 


§    761  DEPOSITIONS  AND  AFFIDAVITS  (Ch.  12 

if  not  known,  such  general  description  as  he  can  give  of  such  per- 
sons, as  heirs,  devisees,  alienees  or  otherwise.  The  petition  shall 
also  state  the  names  of  the  witnesses  to  be  examined,  and  the  inter- 
rogatories to  be  propounded  to  each ;  that  the  applicant  expects  to 
be  a  party  to  an  action  in  a  court  of  this  State,  in  which  such  testi- 
mony will,  as  he  believes,  be  material,  and  the  obstacles  preventing 
the  immediate  commencement  of  the  action,  where  the  applicant 
expects  to  be  plaintiff."  82 

PETITION    FOR   PERPETUATING  EVIDENCE 

In  re  Application  of  A.  B.  to  Perpetuate  Evidence. 

Comes  now  A.  B.,  and  respectfully  represents  and  shows  to  the 
court : 

1.  That  your  petitioner,  A.  B.,  expects  to  be  a  party  to  an  action 
in  a  court  of  this  state,  involving  the  title  to  the  following  described 
real  estate:    (Describe  same.) 

2.  That  the  names  of  all  the  persons  who  are  or  will  be  interested 
in  said  action  are,  so  far  as  the  same  are  known  to  your  petitioner, 
as  follows :    (Naming  them.) 

3.  That  your  petitioner  believes  that  the  testimony  of  C.  D.,  and 

E.  F.,  of ,  will  be  material  in  said  action,  relative  to  (state 

subject-matter  relative  to  which  testimony  is  desired  to  be  taken). 

4.  That  your  petitioner  desires  that  the  testimony  of  said  wit- 
nesses concerning  said  matters  be  perpetuated,  so  that  the  same 
may  be  available  in  said  action,  if  any  such  action  shall  ever  be  be- 
gun, and  desires  that  same  witnesses  be  examined  and  the  following 
interrogatories  be  propounded  to  each  of  said  witnesses:     (Set  forth 
interrogatories  to  be  propounded.) 

Wherefore  your  petitioner  prays  the  court  to  make  an  order  al- 
lowing the  examination  of  said  witnesses,  and  fixing  the  time  and 
place  of  said  examination  and  the  time  and  manner  in  which  the 
parties  interested  shall  be  notified  thereof,  and  that  upon  such  ex- 
amination the  interrogatories  above  set  forth  be  propounded  to 
each  of  said  witnesses  and  their  answers  thereto  taken,  and  that  the 
depositions  of  said  witnesses  when  so  taken  be  filed  in  this  court. 

(Verification.)  X.  Y.,  Attorney  for  Petitioner. 

«2  Rev.  Laws  1910,  §  5117. 
(648) 


Art.  1)  DEPOSITIONS  §  762 

§  762.    Order  for  examining  witnesses — Form 

"The  court,  or  a  judge  thereof,  in  vacation,  may  forthwith  make 
an  order  allowing  the  examination  of  such  witnesses.  The  .order 
shall  prescribe  the  time  and  place  of  the  examination,  how  long  the 
parties  interested  shall  be  notified  thereof,  and  the  manner  in  which 
they  shall  be  notified."  88 

ORDER  FOR  EXAMINING  WITNESSES  TO  PERPETUATE  TESTIMONY 

In  re  Application  of  A.  B.  to  Perpetuate  Evidence. 

Upon  reading  and  filing  the  attached  verified  petition  of  A.  B.  to 
perpetuate  evidence,  it  appearing  to  the  court  that  said  petitioner 
expects  to  be  a  party  to  an  action  in  a  court  of  this  state  involving 
the  title  to  the  real  estate  therein  described,  and  that  the  testimony 
of  C.  D.  and  E.  F.,  of ,  will  be  material  to  said  action : 

It  is  ordered  that  the  — • day  of ,  19 — ,  at  the  hour  of 

o'clock  M.,  at in  the  city  of  ,  in  the 

county  of and  state  of ,  be  and  the  same  is  hereby 

fixed  as  the  time  and  place  when  the  deposition  of  said  witnesses 

shall  be  taken,  and  that of  the  county  of and  state  of 

• ,  is  hereby  commissioned,  authorized,  and  empowered  to  take 

said  depositions,  and  that  at  said  time  and  place  said  commissioner 
shall  propound  to  each  of  said  witnesses  the  interrogatories  set  forth 
in  the  attached  petition,  and  set  down  in  writing  their  answers  there- 
to. It  is  further  ordered  that  a  copy  of  this  order  shall  be  personally 

served  on ,  the  parties  interested  in  the  subject-matter  of  said 

depositions,  at  least days  before  said  depositions  are  to  be 

taken,  and  that  said  parties,  if  they  so  desire,  may  file  herein  such 
cross-interrogatories  as  they  desire  propounded  to  said  witnesses, 

such  cross-interrogatories  to  be  filed  herein  on  or  before  the 

day  of ,  19 — ,  and  that  said  cross-interrogatories,  if  any  there 

be,  shall  be  propounded  to  said  witnesses,  and  their  answers  thereto 
taken  in  the  same  manner  as  the  interrogatories  of  the  petitioner 
herein.  It  is  further  ordered  that  said  depositions,  when  so  taken, 
shall  be  returned  by  said  commissioner  to  the  court  clerk  of  this 
court,  for  the  approval  of  this  court. 

Dated  .  ,  Judge. 

ss  Rev.  Laws  1910,  §  5118. 


§§  763-767  DEPOSITIONS  AND  AFFIDAVITS/  (Ch.  12 

§  763.    Cross-interrogatories 

"When  it  appears  satisfactorily  to  the  court  or  judge  that  the 
parties  interested  cannot  be  personally  notified,  such  court  or  judge 
shall  appoint  a  competent  attorney  to  examine  the  petition,  and 
prepare  and  file  cross-interrogatories  to  those  contained  therein. 
The  witnesses  shall  be  examined  upon  the  interrogatories  of  the 
applicant,  and  upon  cross-interrogatories,  where  they  are  required 
to  be  prepared,  and  no  others  shall  be  propounded  to  them;  nor 
shall  any  statement  be  received  which  is  not  responsive  to  some  one 
of  them.  The  attorney  filing  the  cross-interrogatories  shall  be  al- 
lowed a  reasonable  fee  therefor,  to  be  taxed  in  the  bill  of  costs."  84 

§  764.    Before  whom  taken 

"Such  depositions  shall  be  taken  before  some  one  authorized  by 
law  to  take  depositions,  or  before  some  one  specially  authorized  by 
the  court  or  judge,  and  shall  be  returned  to  the -office  of  the  clerk  of 
the  court  in  which  the  petition  was  filed."  85 

§  765.    Filing  and  use — Costs 

"The  court  or  judge,  if  satisfied  that  the  depositions  have  been 
properly  taken,  and  as  herein  required,  shall  approve  the  same  and 
order  them  to  be  filed;  and  if  a  trial  be  had  between  the  parties 
named  in  the  petition,  or  their  privies  or  successors  in  interest,  such 
depositions  or  certified  copies  thereof  may  be  given  in  evidence 
by  either  party,  where  the  witnesses  are  dead  or  insane,  or  where 
attendance  for  oral  examination  cannot  be  obtained  or  required; 
but  such  depositions  shall  be  subject  to  the  same  objections  for 
irrelevancy  and  incompetency  as  may  be  made  to  depositions  taken 
pending  an  action.86 

"The  applicant  shall  pay  the  costs  of  all  such  proceedings."  87 

§  766.     Error  waived  by  not  excepting 

"Errors  of  the  court  in  its  decisions  upon  exceptions  to  deposi- 
tions, are  waived,  unless  excepted  to."  88 

§  767.    When  deposition  may  be  used 

"The  deposition  of  any  witness  may  be  used  only  in  the  follow- 
ing cases : 

f 

s*  Rev.  Laws  1910,  §  5119.  «?  Rev.  Laws  1910,  §  5122. 

as  Rev.  Laws  1910,  §  5120.  «»  Rev.  Laws  1910,  §  5093. 

se  Rev.  Laws  1910,  §  5121. 

(650) 


Art.  1)  DEPOSITIONS  §§  767-768 

"First.  When  the  witness  does  not  reside  in  the  county  where 
the  action  or  proceeding  is  pending  or  is  sent  for  trial  by  change  of 
venue,  or  is  absent  therefrom. 

"Second.  When,  from  age,  infirmity  or  imprisonment,  the  witness 
is  unable  to  attend  court  or  is  dead. 

"Third.  When  the  testimony  is  required  upon  a  motion,  or  in  any 
other  case  where  the  oral  testimony  of  the  witness  is  not  requir- 
ed." 89 

§  768.    Unavailability  of  witness 

"When  a  deposition  is  offered  to  be  read  in  evidence,  it  must  ap- 
pear to  the  satisfaction  of  the  court  that  for  some  legal  cause  the 
attendance  of  the  witness  cannot  be  procured."  90 

Hence  a  deposition  cannot  be  read  in  evidence  when  the  deponent 
is  in  court  and  capable  of  being  examined.81 

It  is  error  to  permit  the  use  of  the  deposition  of  a  resident  of  the 
county  where  it  is  not  shown  that  his  presence  at  the  trial  cannot 
be  had.92 

No  person  can  be  compelled  to  attend  for  examination  on  the 
trial  of  a  civil  action  except  in  the  county  of  his  residence;  and 
the  fact  that  a  witness  is  temporarily  in  or  passing  through  another 
county  at  the  time  and  place  of  the  trial  therein  is  no  objection  to 
the  reading  of  his  deposition  previously  taken  for  use  at  such 
trial.93 

Where  a  witness  does  not  reside  in  a  county  where  a  trial  of  a 
civil  action  is  to  be  held,  and  his  deposition  is  regularly  taken  in 
the  county  of  his  residence,  and  filed  in  the  district  court  of  the 
proper  county,  it  is  not  a  good  objection,  when  the  deposition  is  of- 
fered, merely  to  state  "that  the  witness  has  been  in  attendance  up- 
on" the  court,  and  is  at  present,  it  is  believed,  on  his  way  to  the 
place  of  trial."  84  It  is  not  prejudicial  error  to  admit  deposition  of 

ss  Rev.  Laws  1910,  §  5073. 
so  Rev.  Laws  1910,  §  5087. 
»i  Chicago,  K.  &  W.  R.  Co.  v.  Prouty,  40  P.  909,  55  Kan.  503. 

92  Chicago,  K.  &  N.  Ry.  Co.  v.  Brown,  24  P.  497,  44  Kan.  384;   Frankhouser 
v.  Neally,  39  P.  700,  54  Kan.  744;    Atchison,  T.  &  S.  F.  R.  Co.  v.  Snedegfer, 
49  P.  103,  5  Kan.  App.  700. 

93  Waite  v.  Teeters,  14  P.  146,  36  Kan.  604. 
»*  Eby  v.  Winters,  33  P.  471,  51  Kan.  777. 

(651) 


§§  768-770  DEPOSITIONS  AND  AFFIDAVITS  (Ch.  12 

resident  of  county  usually  employed  outside  the  state,  where  both 
parties  have  used  their  best  efforts  to  compel  his  attendance.95 

When  a  witness  is  not  herself  suffering  from  an  infirmity  at  the 
time  of  trial,  the  fact  that,  at  the  time  of  the  taking  of  a  deposition, 
she  was  in  attendance  upon  her  sick  husband  is  not  ground  for  the 
admission  of  such  deposition.96 

On  petition  after  adjournment  to  vacate  a  judgment  on  the 
ground  of  fraud,  perjury,  conspiracy,  etc.,  the  rule  applies  that  affi- 
davits and  depositions  cannot  be  used  as  original  evidence  when  the 
witness  is  present  in  court.97 

§  769.     Deposition  as  evidence 

"The  deposition  taken  pursuant  to  this  article  shall  be  admitted 
in  evidence  on  the  trial  of  any  civil  action  or  proceeding,  pending 
before  any  justice  of  the  peace,  mayor  or  other  judicial  officer,  arbi- 
trator or  referee."  98 

§  770.    May  be  read  when 

"When  a  deposition  has  been  once  taken,  it  may  be  read  in  any 
stage  of  the  same  action  or  proceeding,  or  in  any  other  action  or 
proceeding  upon  the  same  matter  between  the  same  parties,  sub- 
ject, however,  to  all  such  exceptions  as  may  be  taken  thereto  under 
the  provisions  of  this  article."  99 

A  deposition  taken  at  the  instance  of  one  party  to  an  action,  and 
not  used  by  him,  may,  if  competent,  be  read  in  evidence  by  the 
opposite  party,  against  the  objection  of  the  party  at  whose  instance 
it  was  taken.1 

Where  a  party  takes  a  deposition  on  notice  as  provided  by  law, 
but  does  not  file  it  in  court,  it  is  not  error  to  refuse  to  order  the 
deposition  to  be  brought  into  court  where  the  application  is  made 
for  the  first  time  during  the  progress  of  the  trial.2 

In  an  action  to  set  aside  a  deed,  where  plaintiff  took  the  deposition 
of  a  grantee,  and  filed  it  in  court,  but  did  not  offer  it  in  evidence, 

»5  Griffith  v.  Midland  Valley  R.  Co.,  100  Kan.  500,  166  P.  467. 
ee  Boise  v.  Atchison,  T.  &  S.  F.  R.  Co.,  51  P.  662,  6  Okl.  243. 
,  »T  Fullenwider  v.  Ewing,  1  P.  300,  30  Kan.  15. 
»8  Rev.  Laws  1910,  §  5083. 
»»  Rev.  Laws  1910,  §  5084. 

1  Rucker  v.  Reid,  13  P.  741,  36  Kan.  468. 

2  Martin  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  105  P.  451,  81  Kan.  344,  27  L.  R. 
A.  (N.  S.)  164. 

(G52) 


Art.  1)  DEPOSITIONS  §§  771-773 

taking  of  the  deposition  was  waiver  of  any  objection  to  defendants' 
testimony,  and  the  deposition  might  properly  be  read  in  evidence 
on  behalf  of  the  defendant  grantee.8 

§  771.    Admission  of  part  of  deposition 

Where  answers  to  questions  on  direct  examination  in  a  deposi- 
tion are  inadmissible  and  are  excluded,  the  cross-examination  on 
the  subject-matter  so  excluded  is  equally  inadmissible.4 

A  portion  of  a  deposition  is  admissible  in  evidence  without  the 
remainder,  if  the  portion  so  introduced  is  all  deponent  said  on 
the  subject  to  which  such  portion  relates,  and,  in  the  absence  of  a 
showing  to  the  contrary,  it  will  be  presumed  that  such  was  the 
case.5 

Permission  to  a  party  to  offer  in  evidence  part  of  a  deposition 
only,  is  not  error  where  the  adverse  party  is  permitted  to  use  all 
or  any  part  of  the  deposition  as  evidence.6 

§  772.     Copies 

Where  the  original  of  a  deposition  duly  taken  and  filed  with 
the  clerk  of  court  is  lost,  a  copy  thereof,  transcribed  and  attested  by 
the  witness  producing  it,  may  be  admitted  as  secondary  evidence  of 
its  contents.7 

When  a  deposition  is  taken  in  a  foreign  jurisdiction,  and  the 
witness  produces  a  record  and  submits  it  to  the  notary,  who  takes 
a  copy,  such  copy  is  admissible  on  a  reading  of  the  deposition.8 

§  773.     Interpleader 

Where  a  party  obtained  permission  to  file  an  interplea  in  a  case 
where  depositions  are  taken  and  are  on  file,  he  is  bound  with  the 
knowledge  of  the  condition  of  the  record,  and  such  depositions 
should  not  be  excluded  for  the  reason  that  the  interpleader  was  not 
served  with  notice  of  their  taking.9 

«  Golder  v.  Colder,  102  Kan.  486,  170  P.  803. 

*  Bertenshaw  v.  Laney,  94  P.  805,  77  Kan.  497. 

s  Mecartney  v.  Smith,  62  P.  540,  10  Kan.  App.  580 ;  Sealey  v.  Smith  (Okl.) 
197  P.  490. 

e  Oklahoma  State  Bank  v.  Buzzard  (Okl.)  175  P.  750. 

7  Gilmore  v.  Butts,  59  P.  645,  61  Kan.  315. 

s  McCord-Collins  Mercantile  Co.  v.  Dodson,  121  P.  1085,  32  Okl.  561 ;  T.  D. 
Turner  &  Co.  v.  Dodson,  121  P.  1087,  32  Okl.  566. 

»  Miller  v.  Campbell  Commission  Co.,  74  P.  507,  13  Okl.  75. 

(653) 


§   774  DEPOSITIONS  AND  AFFIDAVITS  (Ch.  12 

§  774.     Forms 

NOTICE  TO  TAKE  DEPOSITIONS 

(Caption.) 

The  said  plaintiff  (or  defendant),  A.  B.,  and  his  attorney  of  rec- 
ord X.  Y.,  will  take  notice  that  on  the day  of ,  A.  D. 

19 — ,  the  defendant  (or  plaintiff)  above  named  will  take  the  deposi- 
tion of  sundry  witnesses  to  be  used  as  evidence  on  behalf  of  the 
defendant  (or  plaintiff)  in  the  trial  of  the  above  entitled  cause,  at 

(state  office  or  street  number),  in  the  city  of ,  in  the  county 

of — ,  in  the  state  of ,  between  the  hours  of  eight  o'clock 

a.  m.  and  six  o'clock  p.  m.  of  said  day,  and  that  the  taking  of  the 
same  will  be  adjourned  and  continued  from  day  to  day,  at  the  same 
place  between  the  same  hours,  until  they  are  completed. 

G.  H.,  Attorney  for  Defendant  (or  Plaintiff). 

Service  of  the  above  notice  is  hereby  acknowledged  to  have  been 

made  on  plaintiff  (or  defendant)  the  — day  of ,  19 — . 

X.  Y.,  Attorney  for  Plaintiff  (or  Defendant). 

AFFIDAVIT  OF  SERVICE 

State  of  Oklahoma, 


County. 


G.  H.,  being  duly  sworn,  states  that  he  made  service  of  the 
within  notice  on  the  plaintiff,  A.  B.,  by  delivering  to  X.  Y.,  his  at- 
torney of  record,  a  duplicate  thereof  at ,  State  of  Oklahoma, 

on -  day  of ,  19—.  G.  H. 

Subscribed  in  my  presence,  and  sworn  to  before  me, ,  this 

day  of ,  19—. 


HEADINGS  TO  DEPOSITIONS 

Depositions  of  witnesses  taken  to  be  used  in  an  action  pending  in 

the  • court,  within  and  for  the  county  of ,  in  the  state 

of  Oklahoma,  wherein is  plaintiff,  and is  defendant. 

In  pursuance  to  the  notice  hereto  attached  and  at  the  time  and  place 

therein  stated,  the  said ,  plaintiff,  appeared  in  own 

behalf  (or  by ,  attorney)  and  the  said ,  defendant,  in 

own  behalf  (or  by ,  attorney,  or  if  the  adverse  party 

does  not  appear  nothing  need  be  said  as  to  his  appearance),  and 
thereupon  the  said  produced  the  following  witnesses  in  or- 

(654) 


Art.l) 


DEPOSITIONS 


§  774 


der  to  wit:     ,  of  lawful  age,  who,  being  first  duly  sworn, 

deposeth   and   saith ;    also   -       — ,  who,  being  first  duly 

sworn,  deposeth  and  saith,  etc.  (Where  the  witness  is  examined  by 
questions  the  form  will  be  as  the  above,  adding,  after  "saith,"  in 
reply  to  the  interrogatories  pronounced,  to  wit,  etc.) 

CERTIFICATE   ATTACHED    TO    DEPOSITION 

I, (justice  of  the  peace,  judge,  notary,  etc.)  within  and  for 

the  county  of ,  in  the  state  of  Oklahoma,  do  hereby  certify 

that  the  above  named ,  the  witnesses  whose  names  are  sever- 
ally subscribed  to  the  foregoing  depositions  were  by  me  first  duly 
sworn  (or  affirmed)  to  testify  the  truth,  the  whole  truth,  and  noth- 
ing but  the  truth,  in  the  case  aforesaid,  and  that  the  depositions  by 

them  respectively  subscribed  were  reduced  to  writing  by  , 

who  is  not  attorney  for  of  related  to  either  of  said  parties  or  other- 
wise interested  in  the  event  of  said  action  or  proceeding,  and  sub- 
scribed by  the  respective  witnesses  in  my  presence,  and  the  same 

were  taken  on  the  day  of ,  A.  D.,  19 — ,  between  the 

hours  of  8  o'clock  a.  m.  and  6  o'clock  p.  m.,  of  said  day  at  the  office 

of ,  in  the  town  of ,  in  the  county  of and 

of ,  as  specified  in  the  notice  thereto  attached,  and  I  am  not 

attorney  for  or  related  to  either  of  said  parties  or  otherwise  in- 
terested in  the  event  of  said  action. 


ENDORSEMENT  ON  ENVELOPE 

In  the Court  of County,  State  of  Oklahoma. 

County, 


-,  Plaintiff. 

v. 
-,  Defendant. 


To  the  Court  Clerk  of  

State  of  Oklahoma, Oklahoma. 

K  ss. :  Signed . 


(Deposition  taken  by  me) 
(Seal)  Title  of  officer 


(655) 


§§  775-776  DEPOSITIONS  AND  AFFIDAVITS  (Ch.  12 

ARTICLE  II 

AFFIDAVITS 

Sections 

775.  Definition. 

776.  Use. 

777.  Jurat. 

778.  Before   whom  taken. 

779.  By  whom  made. 

780.  Forms. 

§  775.    Definition 

"An  affidavit  is  a  written  declaration,  under  oath,  made  without 
notice  to  the  adverse  party."  10 

§  776.     Use 

"An  affidavit  may  be  used  to  verify  a  pleading,  to  prove  the 
service  of  a  summons,  notice  or  other  process  in  an  action,  to  ob- 
tain a  provisional  remedy,  an  examination  of  a  witness,  a  stay  of 
proceedings,  or  upon  a  motion,  or  in  any  other  case  permitted  by 
law."  X1 

An  affidavit  may  be  used  only  in  the  cases  enumerated  in  this 
statute  and  in  chancery  proceedings,  unless  specially  authorized  by 
law.  It  cannot  be  used  in  evidence  where  an  issue  is  made  and 
triable.12 

Where  in  specific  performance,  the  plaintiff  had  furnished  the 
defendant  an  abstract  showing  title,  ex  parte  affidavits  accompany- 
ing the  abstract  to  show  who  were  the  heirs  of  a  decedent  were  held 
admissible.13 

To  be  used  as  evidence  an  affidavit  should  state  facts  positively, 
and  not  merely  on  belief.14 

When  a  verified  petition  is  used  as  an  affidavit,  its  allegations 
must  be  construed  as  those  of  an  affidavit,  and  must  be  such  state- 
ments of  fact  as  would  be  proper  in  the  oral  testimony  of  a  witness. 
Allegations  which  are  simply  conclusions  of  law,  whether  suffi- 
cient or  not  as  matter  of  pleading,  are  incompetent  as  testimony.16 

10  Rev.  Laws  1910,  §  5068. 

11  Rev.  Laws  1910,  |  5071. 

12  Watkins  v.  Grieser,  11  Okl.  302,  66  P.  332. 
is  Barrel  v.  Neef,  102  P.  838,  80  Kan.  348. 

i*  Shanholtzer  v.  Thompson,  103  P.  595,  24  Okl.  198,  138  Am.  St.  Rep.  877. 
10  State  v.  Missouri  &  K.  Tel.  Co.,  77  Kan.  774,  95  P.  391. 

(656) 


Art.  2)  AFFIDAVITS  §§  777-778 

§  777.    Jurat 

The  statutory  certificate  for  the  authentication  of  depositions, 
cannot  be  used  on  an  ordinary  affidavit,  and  no  form  of  jurat  to  be 
appended  to  such  affidavits  is  prescribed  by  the  Code.16 

The  fact  that  a  notary  public,  before  whom  a  claim  of  mechanic's 
lien  is  verified,  fails  to  add  after  his  official  signature  the  date  of  the 
expiration  of  his  commission,  does  not  render  such  lien  void ;  since 
the  statute  requiring  such  addition  on  the  part  of  the  notary  does 
not  attempt  to  avoid  the  affidavit  on  account  of  such  omission,  but 
simply  subjects  the  notary  to  a  penalty  therefor.17 

The  words,  "subscribed  and  sworn  to  before  me,"  in  the  certifi- 
cate of  the  officer  before  whom  an  affidavit  is  made,  are  a  suffi- 
cient compliance  with  the  statute.18 

If  a  declaration  has  been  made  under  oath  it  is  an  affidavit  though 
no  jurat  be  attached,  the  jurat  being  simply  evidence  that  an  oath 
was  duly  administered.19 

When  a  paper  purporting  to  be  an  affidavit  has  been  approved  by 
the  court  as  such,  and  has  been  the  basis  of  judicial  action  as  if  au- 
thenticated, the  omission  of  the  jurat  is  a  mere  irregularity  which 
will  not  expose  the  proceeding  to  collateral  attack.20 

§  778.     Before  whom  taken 

"An  affidavit  may  be  made  in  and  out  of  this  State,  before  any  per- 
son authorized  to  take  depositions,  and  must  be  authenticated  in 
the  same  way,  except  as  provided  for  the  verification  of  plead- 
ings." 21 

It  is  improper  for  a  lawyer  to  take  acknowledgments  to  affidavits, 
to  be  used  in  the  trial  of  a  case  in  which  he  is  the  attorney.22 
Such  affidavit  is  voidable,  on  being  assailed  for  that  reason,23  but 
it  may  be  amended,24  and,  when  amended  and  filed,  it  will  relate 
back  to  the  original  affidavit.25 

IB  James  v.  Logan,  108  P.  81,  82  Kan.  285,  136  Am.  St.  Rep.  105. 
IT  Phelps  &  Bigelow  Windmill  Co.  v.  Baker,  30  P.  472,  49  Kan.  434. 
is  Pallady  v.  Beatty,  15  Okl.  626,  83  P.  428. 
is  Id. 

20  Id. 

21  Rev.  Daws  1910,  §  5072. 

22  Crawford  v.  Ferguson,  115  P.  278,  5  Okl.  Cr.  377,  45  L.  R.  A.  (N.  S.)  519. 

23  Shanholtzer  v.  Thompson,  103  P.  595,  24  Okl.  198,  138  Am.  St.  Rep.  877. 

24  Swearingen  v.  Hows-er,  14  P.  436,  37  Kan.  126. 

26  Board  of  Com'rs  of  Cheyenne  County  v.  Walter,  112  P.  599,  83  Kan.  743. 

HON.PL.&  PRAC.-42  (G57) 


§§   779-780  DEPOSITIONS  AND  AFFIDAVITS  (Ch.  12 

§779.     By  whom  made 

Where  a  statute  requires  an  affidavit  to  be  made  by  the  judgment 
creditor  or  his  attorney,  such  affidavit  cannot  be  made  by  an  agent 
not  an  attorney.26 

§  780.     Forms 

AFFIDAVIT 

State  of  Oklahoma,!  * 

0              s  Y  ss. : 

County  of .  J 

A.  D.,  being  first  duly  sworn,  upon  oath  alleges  and  states:  (Set 
forth  the  facts  concisely.)  A.  D. 

,  Subscribed  and  sworn  to  before  me  this  day  of , 

19—. 

(If  before  notary,  add:)  J.  B.,  (Official  Title.) 

My  commission  expires ,  19 — . 

ze  in  re  Heath,  19  P.  926,  40  Kan.  333. 
(658) 


13Ch.  )  TRIAL  §§  781-782 

» 

CHAPTER  XIII 

TRIAL 

Sections 

781-795.  Article  I — In    general- 

796-801.  Article  II. — Argument  and  conduct  of  counsel. 

802-824.  Article  III. — Issues  and   trial   thereof. 

802.  Division  I. — Issues  in  general. 

803-824.  Division  II. — Taking  case  or  question  from  jury. 

ARTICLE  I 

IN  GENERAL 

Sections 

781.  Definition. 

782.  Time  of  trial. 

783.  Waiver  of  right. 

784.  Docket. 

785.  Copy  for  bar. 

786.  Presence  of  judge. 

787.  Presence  of  parties  and  attorneys. 

788.  Conduct  and  remarks  of  judge. 

789.  Consolidation. 

790-  Separate  trials — Several  defendants. 

791.  Reporter — Duties. 

792.  Order  of  trial — Issues — Damages — Motions — Objections. 

793.  Waiver  of  right  to  object. 

794.  Issues — Trial  by  court  or  jury. 
794a.  Trial  by  court- 

794b.  Agreed  statement  of  facts. 

795.  Submission  without  suit- 

§  781.     Definition 

"A  trial  is  a  judicial  examination  of  the  issues,  whether  of  law 
or  fact,  in  an  action."  1 

§  782.     Time  of  trial 

"Actions  shall  be  triable  at  the  first  term  of  court,  after  or  dur- 
ing which  the  issues  therein,  by  the  time  fixed  for  pleading  are,  or 
shall  have  been  made  up.  When  the  issues  are  made  up,  or  when 
the  defendant  has  failed  to  plead  within  the  time  fixed,  the  cause 
shall  be  placed  on  the  trial  docket,  and  if  it  be  a  trial  case  shall 
stand  for  trial  at  such  term  ten  days  after  the  issues  are  made  up, 

i  Rev.  Laws  1910,  §  4988, 

(659) 


§  782  TRIAL  (Ch.  13 

and  shall,  in  case  of  default,  stand  for  trial  forthwith.  When  any 
demurrer  shall  be  adjudged  to  be  frivolous  the  cause  shall  stand 
for  hearing  or  trial  in  like  manner  as  if  an  issue  of  fact  had  been 
joined  in  the  first  instance."  2 

When  the  issues  have  been  fully  made  up,  this  statute  has  spent 
its  force,  and  any  subsequent  change  in  the  issues  does  not  neces- 
sarily work  a  delay  of  the  trial.8 

Where  a  party  to  an  action  deliberately  puts  himself  in  default, 
so  far  as  he  is  concerned,  the  action  may  be  tried  at  any  time  there- 
after.4 

2  Rev.  Laws  1910,  §  5043;  Conwill  v.  Eldridge,  130  P.  912,  35  Okl.  537. 
Where  one  defendant  joined  issue  and  another  appeared  at  a  term  and 

adopted  the  answer  of  his  codefendant  on  condition  that  case  immediately 
proceed  to  trial,  it  was  reversible  error  to  overrule  plaintiffs'  motion  to  strike 
case  from  trial  docket  and  to  compel  them  to  go  to  trial  over  their  objection. 
Harn  v.  Interstate  Building  &  Loan  Co.  (Okl.)  172  P.  1081. 

Civ.  Code  Prac.  §  315,  provides  for  the  making  out  of  the  trial  docket  10 
days  before  the  first  day  of  the  term.  A  demurrer  to  a  petition  was  over- 
ruled and  leave  to  answer  given.  Held,  that  the  case  was  not  triable  on 
the  issues  of  fact  joined  at  the  term  of  the  court  wlien  such  ruling  was 
made.  City  of  Eureka  v.  Ross,  67  P.  849,  64  Kan.  372. 

Upon  the  overruling  of  a  motion  to  quash  a  summons  and  set  aside  the 
service,  if  it  appears  that  the  motion  is  not  made  in  good  faith  or  is  frivolous, 
it  is  within  the  discretion  of  the  court  to  continue  the  case  for  the  term, 
or  to  assign  it  for  hearing  at  the  same  term ;  reasonable  time  being  given  to 
make  up  the  issues.  Jones  v.  American  Cent.  Ins.  Co.,  1^9  P.  1077,  83  Kan. 
44.  Where  the  question  of  law  raised  on  a  motion  to  quash  a  summons  and 
set  aside  the  service  had  been  determined  by  the  court  about  16  years  before 
the  motion  was  filed,  and  22  days  were  given  to  make  up  the  issues  and  pre- 
pare for  trial,  the  court  did  not  abuse  its  discretion  in  assigning  the  case 
for  hearing  at  the  same  term  after  overruling  the  motion.  Id. 

Where  defendants  were  required  over  their  objection  to  defend  the  cause 
upon  its  merits  at  a  term  when  it  was  not  triable  except  by  consent,  and 
before  the  issues  were  framed,  a  new  trial  ought  to  be  granted.  Harris  v. 
Anthony  Salt  Co.,  45  P.  58,  57  Kan.  24. 

3  King  v.  King,  141  P.  788,  42  Okl.  405. 

A  case  stands  for  trial  when  issues  have  been  made  up  for  10  days,  and 
a  motion  directed  to  defendant's  answer,  filed  beyond  the  time  allowed  for 
filing  pleadings,  does  not  revive  operation  of  statute.  Blackert  v.  Lankford 
(Okl.)  176  P.  532. 

Any  subsequent  change  in  issues  by  new  or  amended  pleadings  does  not 
necessarily  work  a  delay  of  trial.  Childs  v.  Cook  (Okl.)  174  P.  274 ;  Swope 
v.  Burnham,  52  P.  924,  6  Okl.  736. 

A  motion  directed  to  the  answer,  after  the  time  allowed  for  filing  pleadings 
and  more  than  ten  days  after  the  issues  have  been  made  up,  does  not  prevent 
the  cause  from  standing  for  trial.  Chicago,  R.  I.  &  P.  Ry.  Go.  v.  Pitchford, 
44  Okl.  197,  143  P.  1146. 

*  Herman  v.  Gardener,  103  Kan.  659,  175  P.  971. 
(660) 


Art.  1)  IN  GENERAL  §§  782-786 

When,  a  nonfrivolous  demurrer  has  been  overruled,  the  case  is 
not  triable  on  issues  of  fact  until  10  days  after  the  filing  of  the  an- 
swer.5 

The  trial  of  an  issue  of  fact,  and  the  assessment  of  damages,  in 
any  case,  shall  be  in  the  order  in  which  they  are  placed  on  the 
trial  docket,  unless  the  court,  in  its  discretion,  shall  otherwise  di- 
rect.6 

§  783.    Waiver  of  right 

The  right  of  a  litigant  under  this  statute  is  waived  by  failing  to 
object  that  the  case  is  improperly  set  for  trial,  and  moving  for  a 
continuance  for  absence  of  witnesses.7  Such  right  is  waived  where 
defendant  announces  ready  for  trial ; 8  also  where,  upon  a  case  be- 
ing called,  both  parties  announce  ready  and  a  jury  is  impaneled 
and  sworn  and  defendant  amends  with  leave.* 

§  784.    Docket 

"A  trial  docket  shall  be  made  out  by  the  clerk  of  court,  at  least 
twelve  days  before  the  first  day  of  each  term  of  the  court,  and  the 
actions  shall  be  set  for  particular  days  in  the  order  prescribed  by 
the  judge  of  the  court,  and  so  arranged  that  the  cases  set  for  each 
day  shall  be  considered  as  nearly  as  may  be  on  that  day."  10 

§  785.    Copy  for  bar 

'  "The  clerk  shall  make  out  a  copy  of  the  trial  docket  for  the  use 
of  the  bar,  before  the  first  day  of  the  term  of  court  and  cause  the 
same  to  be  printed." 1X 

§  786.     Presence  of  judge 

During  the  trial  it  is  error  for  trial  judge  to  absent  himself  from 
trial  room  so  as  to  lose  immediate  and  instant  control  of  proceed- 
ings.12 

• 

B  City  of  Ardmore  v.  Orr,  129  P.  867,  35  Okl.  305. 
e  Burr  v.  Honeywell,  51  P.  235,  6  Kan.  App.  783. 
7  Conwill  v.  Eldridge,  130  P.  912,  35  Okl.  537. 
s  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Pitchford,  44  Okl.  197,  143  P.  1146. 
»  Oklahoma  Trust  Co.  v.  Stein,  136  P.  746,  39  Okl.  756. 

10  Rev.  Laws  1910,  §  5040. 

11  Rev.  Laws  1910,  §  5041. 

12  Peters  Branch  of  International  Shoe  Co.  v.  Blake  (OkL)  176  P.  892. 

(661) 


§§  787-788  TRIAL  (Ch.  13 

§  787.     Presence  of  parties  and  attorneys 

When  a  cause  is  regularly  set  for  trial,  it  is  not  trie  duty  of  the 
court  to  call  counsel  when  absent,  and  it  is  no  abuse  of  discretion 
to  proceed  to  trial  when  the  cause  is  reached,  where  no  postpone- 
ment has  been  taken,  and  no  leave  of  absence  has  been  granted  to 
parties  or  their  counsel.13 

§  788.     Conduct  and  remarks  of  judge 

The  jury  is  the  exclusive  judge  of  the  weight  to  be  given  the 
testimony  of  any  witness,  and  a  remark  or  the  demeanor  of  the 
trial  judge  amounting  to  an  opinion  as  to  the  truthfulness  of  a  wit- 
ness is  reversible  error.14 

The  court  should  not  by  his;  remarks  mislead  a  party  into  be- 
lieving that  the  decision  will  be  in  his  favor,15  but  may  reprimand 
a  party  for  trifling  with  the  court,16  and  may  make  mention  of  an 
obvious  fact.17  He  may  reprimand  a  witness  who,  contrary  to 

is  North  v.  Hooker  (Okl.)  172  P.  77;  Buchanan  v.  Fireman's  Ins.  Co.  of 
Newark,  N.  J.,  146  P.  411,  94  Kan.  132. 

It  is  no  abuse  of  discretion  to  proceed  to  trial  in  the  absence  of  one  of 
the  parties  or  his  counsel,  where  no  postponement  had  been  granted  or  per- 
mission given  to  be  absent.  Linderman  v.  Nolan,  83  P.  796,  16  Okl.  352; 
Comstock-Castle  Stove  Co.  v.  Galland,  49  P.  690,  6  Kan.  App.  831. 

i*  City  of  Newkirk  v.  Dimmers,  87  P.  603,  17  Okl.  525. 

is  During  the  progress  of  a  trial  to  the  court,  the  judge  informed  defendant, 
before  he  had  introduced  all  his  evidence,  that  the  court  was  ready  to  de- 
cide the  case  without  further  evidence,  and  that  he  did  not  think  additional 
testimony  would  affect  the  decision,  but  would  hear  anything  of  a  different 
nature  from  that  already  offered.  The  evidence  preponderated  largely  in 
favor  of  defendant,  and  the  decision  of  the  court  was  against  him.  .  Held, 
that  the  remarks  of  the  court  had  a  tendency  to  mislead  defendant  into  the 
belief  that  the  decision  would  be  in  his  favor,  and  prevent  him  from  hav- 
ing a  fair  and  impartial  trial,  and  a  new  trial  should  be  granted.  Harrison 
v.  Harrison,  29  P.  572,  48  Kan.  443. 

IB  When  plaintiff  asks  for  continuance  after  jury  is  called,  on  the  ground 
that  he  is  too  ill  to  be  present  at  the  trial,  but  on  examination  states  that 
he  is  able  to  be  about  town,  and  finally  that  he  is  able  to  proceed  to  trial, 
and  then  asks  for  delay  to  call  his  witnesses  to  determine  whether  he  will 
ask  for  a  continuance  on  account  of  absent  witnesses,  it  is  not  improper  for 
the  court  to  characterize  his  conduct  as  trifling.  Krapp  v.  Hauer,  16  P. 
702,  38  Kan.  430. 

3 1  Where  the  depositions  of  a  witness  for  both  parties  were  palpably  con- 
flicting, it  was  not  prejudicial  error  for  the  court  to  remark  that  the  wit- 
ness "must  be  an  awful  liar."  Connor  v.  Wilkie,  41  P.  71,  1  Kan.  App.  492. 

In  an  action  against  a  levying  officer  for  conversion,  a  remark  of  the  court 
to  counsel  for  plaintiff  that  he  was  trying  the  case  as  though  defendant  were 

(662) 


Art.  1)  IN  GENERAL  §§  788-790 

its  admonition,  persists  in  making  voluntary  statements  not  elicit- 
ed by  his  examination.18 

It  is  error  for  the  court  to  comment  in  the  presence  of  the  jury 
on  the  effect  answers  to  special  questions  will  have  on  the  rights 
of  the  parties.19 

A  remark  of  the  court  that  he  was  going  to  take  a  recess,  and 
that  he  was  tired  of  lawyers  questioning  witnesses  and  objecting 
to  everything,  did  not  constitute  reversible  error.20 

§  789.     Consolidation 

An  application  for  the  consolidation  of  actions  is  a  matter  within 
the  discretion  of  the  trial  court.21 

§  790.     Separate  trials — Several  defendants 

"A  separate  trial  between  the  plaintiff  and  any  or  all  of  several 
defendants  may  be  allowed  by  the  court,  whenever  justice  will  be 
thereby  promoted."  22 

It  is  within  the  discretion  of  a  trial  court  to  allow  separate  trials 
to  the  several  defendants,  or  to  refuse  the  same.23  Its  ruling  will 
never  be  reversed  unless  it  can  be  clearly  seen  that  it  abused  its 
discretion.24 

a  common  thief,  trying  to  get  away  with  somebody's  property  does  not  re- 
quire a 'reversal.     Cone  v.  Smyth,  45  P.  247,  3  Kan.  App.  607. 
is  jEtna  Life  Ins.  Co.  v.  Kramer  (Okl.)  165  P.  179. 

19  Atchison,  IT.  &  S.  F.  R.  Co.  v.  Ayers,  42  P.  722,  56  Kan.  176- 

20  Love  v.  Reynolds.  128  P.  242.  36  Okl.  297. 

21  Readicker  v.  Denning,  122  P.  103,  86  Kan.  617,  judgment  reversed  on 
rehearing  125  P.  29,  87  Kan.  523. 

22  Rev.  Laws  1910,  §  4995. 

23  Herbert  v.  Wagg,  117  P.  209,  27  Okl.  674. 

The  allowance  of  a  separate  trial  is  wholly  within  the  discretion  of  the 
trial  court.  Gregg  v.  Berkshire,  62  P.  550,  10  Kan.  App.  579. 

Where  persons  in  possession  of  separate  parts  of  tract  without  common  in- 
terest are  joined  in  ejectment  for  whole  tract,  and  where  defendants  rely  upon 
different  sources  of  title,  the  court  may  order  separate  trials.  Mullen  v. 
Carter  (Okl.)  173  P.  512. 

24  Hoskinson  v.  Bagby,  27  P.  110,  46  Kan.  758. 

In  suit  to  recover  real  estate,  commission  alleging  a  conspiracy  between 
vendor  and  purchaser,  wherein  vendor  filed  a  cross-petition  against  purchaser, 
the  refusal  of  separate  trials  of  the  issues  was  a  proper  exercise  of  trial 
court's  discretion.  Prather  v.  Eden,  171  P.  635,  102  Kan.  545. 

In  an  action  to  recover  damages  occasioned  by  negligently  setting  out  a 
fire,  in  which  a  partnership,  which  was  engaged  in  operating  a  railroad  in 
connection  with  a  railroad  company,  was  made  defendant  jointly,  with  the 
railroad  company,  it  is  not  prejudicial  error,  nor  an  abuse  of  discretion,  for 

(663) 


§§  791-792  TRIAL  (Ch.  13 

§  791.     Reporter— Duties 

The  statute  making  it  the  duty  of  the  court  reporter  to  take  down 
in  shorthand  all  the  proceedings  upon  the  trial  of  any  cause,  as  well 
as  statements  of  counsel,  does  not  contemplate  that  the  entire  ar- 
gument of  the  counsel  to  the  jury  should  be  taken  down,  but  applies 
to  all  statements  which  counsel  have  a  right  to  have  taken  down 
concerning  the  cause  which  might  be  properly  made  a  part  of  the 
case  made  for  appeal.25 

The  matters  which  counsel  may  demand  taken  down  by  the  ste- 
nographer at  the  trial,  are  only  such  as  may  properly  be  made  part 
of  the  case-made,  and  do  not  include  matters  foreign  to  the  case 
being  tried.26 

It  is  error  for  county  court  to  refuse  to  permit  stenographer  to 
incorporate  in  records  of  trial  all  exceptions  that  attorney  may  de- 
sire to  reserve  to  action  of  court  in  giving  or  refusing  instructions.27 

Under  the  statute,  the  court  on  request  must  require  the  court 
reporter  to  take  and  transcribe  evidence.28 

§  792.     Order  of  trial — Issues — Damages — Motions — Objections 

"The  trial  of  an  issue  of  fact,  and  the  assessment  of  damages  in 
any  case,  shall  be  in  the  order  in  which  they  are  placed  on  the  trial 
docket,  unless  by  the  consent  of  the  parties  or  the  order  of  the  court 
they  are  continued  or  placed  at  the  heel  of  the  docket,  unless  the 
court,  in  its  discretion,  shall  otherwise  direct.  The  court  may,  in 

the  trial  court  to  refuse  a  separate  trial  to  such  partnership,  for  the  reason 
that  a  different  rule  as  to  the  burden  of  proof  applies  to  them  than  to  the 
railroad  company,  under  the  statute,  where  the  evidence  establishing  the 
origin  of  the  fire,  and  the  culpable  negligence  of  the  parties  in  starting  it, 
is  clear,  convincing  and  undisputed.  Xatham  v.  Brown,  29  P.  400,  48  Kan.  190. 

In  an  action  on  a  promissory  note  against  two  defendants,  one  the  guaran- 
tor, and  the  other  the  maker,  the  latter  pleaded  want  of  consideration  and 
the  fraud  of  his  co-defendant  in  procuring  the  note  as  a  defense,  and  asked 
that  the  note  sued  on  be  declared  void,  and  that  he  have  judgment  against 
his  co-defendant  for  the  amount  he  had  been  obliged  to  pay  in  settlement 
of  another  note  given  at  the  same  time  and  in  the  same  transaction  with  the 
one  sued  on.  Held,  that  said  guarantor's  demand  for  a  separate  trial  of  the 
issues  between  himself  and  the  maker  of  the  note  was  properly  overruled. 
Crane  v.  Cox,  49  P.  796,  6  Kan.  App.  405. 

26pickinson  v.  Whitaker,  75  Okl.  243,  182  P.  901;   Rev.  Laws  1910,  §  1786. 

26  Dabney  v.  Hathaway,  51  Okl.  658,  152  P.  77. 

27  Methvine  v.  Fisher  (Okl.)  166  P.  702;    Anoatubby  v.  Pennington,  46  Okl. 
221,  148  P.  828. 

28  Cherry  v.  Brown,  79  Okl.  215,  192  P.  227. 

(664) 


Art.  1)  IN   GENERAL  §    792 

its  discretion,  hear  at  any  time  a  motion,  and  may  by  rule  prescribe 
the  time  for  hearing  motions."  29 

This  statute  vests  a  large  discretion  in  the  trial  court  to  dispose 
of  the  causes  in  such  order  as  will  most  speedily  dispose  of  the  busi- 
ness before  the  court.80 

Calling  a  case  which  stands  on  a  day's  calendar  for  trial  without 
notice  to  the  attorney  is  no  abuse  of  discretion,  where  no  request 
is  made  for  postponement  and  no  permission  to  be  absent  has  been 
given.31 

"When  the  jury  has  been  sworn,  the  trial  shall  proceed  in  the  fol- 
lowing order,  unless  the  court  for  special  reasons  otherwise  directs : 

"First.  The  party  on  whom  rests  the  burden  of  the  issues  may 
briefly  state  his  case,  and  the  evidence  by  which  he  expects  to 
sustain  it. 

"Second.  The  adverse  party  may  then  briefly  state  his  defense, 
and  the  evidence  he  expects  to  offer  in  support  of  it. 

"Third.  The  party  on  whom  rests  the  burden  of  the  issues  must 
first  produce  his  evidence;  after  he  has  closed  his  evidence  the 
adverse  party  may  interpose  and  file  a  demurrer  thereto,  upon  the 
ground  that  no  cause  of  action  or  defense  is  proved.  If  the  court 
shall  sustain  the  demurrer,  such  judgment  shall  be  rendered  for  the 
party  demurring  as  the  state  of  the  pleadings  or  the  proof  shall 
demand.  If  the  demurrer  be  overruled,  the  adverse  party  will  then 
produce  his  evidence. 

.  "Fourth.  The  parties  will  then  be  confined  to  rebutting  evidence 
unless  the  court,  for  good  reasons  in  furtherance  of  justice,  per- 
mits them  to  offer  evidence  in  the  original  case. 

"Fifth.  When  the  evidence  is  concluded  and  either  party  desires 
special  instructions  to  be  given  to  the  jury,  such  instructions  shall 
be  reduced  to  writing,  numbered,  and  signed  by  the  party  or  his 
attorney  asking  the  same,  and  delivered  to  the  court.  The  court 
shall  give  general  instructions  to  the  jury,  which  shall  be  in  writing, 
and  be  numbered,  and  signed  by  the  judge,  if  required  by  either 
party. 

"Sixth.  When  either  party  asks  special  instructions  to  be  given 
to  the  jury,  the  court  shall  either  give  such  instructions  as  re- 

2»  Rev.  Laws  1910,  §  5042. 

«o  Linderman  v.  Nolan,  83  P.  796,  16  Okl.  352. 

«  Lindsy  v.  Goodman,  57  Okl.  408,  157  P.  344. 

(665) 


§§  792-794  TRIAL  CCh.  13 

quested,  or  positively  refuse  to  do  so ;  or  give  the  instructions  with 
modification  in  such  manner  that  it  shall  distinctly  appear  what  in- 
structions were  given  in  whole  or  part,  and  in  like  manner  those 
refused,  so  that  either  party  may  except  to  the  instructions  as  asked 
for,  or  as  modified,  or  to  the  modification,  or  to  the  refusal.  All 
instructions  given  by  the  court  must  be  signed  by  the  judge;  and 
filed  together  with  those  asked  for  by  the  parties  as  a  part  of  the 
record. 

"Seventh.  After  the  instructions  have  been  given  to  the  jury  the 
cause  may  be  argued."  82 

The  definition,  timeliness,  requisites,  form,  entry,  materiality,  and 
withdrawal  of  exceptions  is  treated  elsewhere.33 

§  793.     Waiver  of  right  to  object 

Where  a  party  voluntarily  goes  to  trial  upon  all  the  issues  ten- 
dered, this  objection  that  the  statutory  order  of  procedure  was  not 
observed,  made  at  the  time  of  the  motion  for  a  new  trial,  is  too 
late.84 

Any  error  in  trying  issues  between  plaintiff,  a  garnishee,  and  in- 
tervening claimants,  before  the  entry  of  judgment  against  the  prin- 
cipal defendant,  is  waived  by  proceeding  to  trial  without  objection 
or  request  for  delay.35 

§  794.     Issues — Trial  by  court  or  jury 

"Issues  of  law  must  be  tried  by  the  court,  unless  referred.  Issues 
of  fact  arising  in  actions  for  the  recovery,  of  money,  or  of  specific 
real  or  personal  property,  shall  be  tried  by  a  jury,  unless  a  jury 
trial  is  waived,  or  a  reference  be  ordered,  as  hereinafter  pro- 
vided." 36 

"All  other  issues  of  fact  shall  be  tried  by  the  court,  subject  to 
its  power  to  order  any  issue  or  issues  to  be  tried  by  jury,  or  refer- 
red as  provided  in  this  Code."  37 

32  Rev.  Laws  1910,  §  5002. 

33  See  post,  §  2409  et  seq. 

34  Smith  v.  Smith,  89  P.  896,  75  Kan.  847. 

as  Greenwood  County  Bank  v.  O.  B.  Walker  Telephone  Co.,  128  P.  357,  88 
Kan.  287. 

se  Rev.  Laws  1910,  §  4993. 
87  Rev.  Laws  1910,  §  4994. 

(666) 


Art.  1)  IN  GENERAL  §  794a 

§  794a.    Trial  by  court 

"The  provisions  of  this  article  respecting  trials  by  jury  apply, 
so  far  as  they  are  in  their  nature  applicable  to  trials  by  the  court."  88 

"Upon  the  trial  of  questions  of  fact  by  the  court,  it  shall  not  be 
necessary  for  the  court  to  state  its  findings,  except  generally,  for 
the  plaintiff  or  defendant,  unless  one  of  the  parties  request  it,  with 
the  view  of  excepting  to  the  decision  of  the  court  upon  the  ques- 
tions of  law  involved  in  the  trial ;  in  which  case  the  court  shall  state 
in  writing,  the  conclusions  of  fact  found,  separately  from  the  con- 
clusions of  law."  39 

The  refusal  of  the  court  to  state  findings  of  fact  in  writing  and 
conclusions  of  law  on  them,  when  requested  so  to  do  by  either  party 
to  a  suit,  before  judgment,  is  reversible  error.40  But  a  party  cannot 

ss  Rev  Laws  1910,  §  5039. 

3»  Rev.  Laws  1910,  §  5017. 

The  fact  that  findings  of  fact  and  conclusions  of  law  were  prepared  by  coun- 
sel at  the  request  of  the  court,  and,  after  an  examination,  were  adopted,  is 
not  objectionable.  Howard  v.  Howard,  34  P.  1114,  52  Kan.  469. 

It  is  proper  for  the  trial  court  to  call  on  the  attorney  of  the  successful  par- 
ty to  write  out  findings  of  fact  in  the  case  in  accordance  with  the  decision  as 
announced  orally.  English  v.  English,  35  P.  1107,  53  Kan.  173. 

Where  the  facts  have  been  found  at  the  trial,  but  are  not  reduced  to  writing 
when  judgment  is  rendered,  they  may  thereafter  be  written  out  by  the  court, 
by  agreement  of  the  parties,  and  filed  as  of  the  date  of  the  judgment  Ran- 
dolph v.  Campbell,  47  P.  560,  5  Kan.  App.  880.  An  agreement  by  the  parties 
that  the  findings  of  fact  may  be  written  out  and  filed  after  the  date  of  the 
judgment  cannot  be  established  by  parol,  but  must  be  shown  by  a  duly-re- 
corded order  of  court  made  pursuant  to  the  agreement.  Id. 

40  Rogers  v.  Bonnett,  37  P.  1078,  2  Okl.  553 ;  Bryan  v.  Okmulgee  County 
Business  Men's  Ass'n  (Okl.)  176  P.  226;  Insurance  Co.  of  North  America  v. 
Taylor,  124  P.  974,  34  Okl.  186 ;  Thompson  v.  Russell,  32  P.  56,  1  Okl.  225. 

Under  the  express  provisions  of  Rev.  Laws  1910,  §  5017,  the  district  court, 
on  a  trial  without  a  jury,  should  on  request  find  the  material  facts  established 
by  the  evidence,  so  that  exceptions  may  be  taken  to  its  view  of  the  law  in- 
volved in  the  trial.  Allen  v.  Wildman,  38  Okl.  652,  134  P.  1102. 

On  trial  of  a  question  of  fact  by  the  district  court,  it  must,  on  request  find 
the  material  facts  established  by  the.  evidence,  so  that  exceptions  may  be  tak- 
en to  its  views  of  the  law  involved  in  the  trial.  Shuler  v.  Lashhorn,  74  P. 
264,  67  Kan.  694. 

In  a  suit  to  abate  a  mill  dam,  which  subjects  the  plaintiff's  land  to  over- 
flow, and  for  damages,  the  court  may  make  findings  of  fact  in  addition  to  those 
made  by  the  jury.  Drinkwater  v.  Sauble,  26  P.  433,  46  Kan.  170. 

Refusal  oa  timely  request  to  make  findings  of  fact  on  material  issuable  mat- 
ters put  in  issue  by  the  pleading  and  on  which  evidence  was  introduced  held 
error.  Nordman  v.  Johnson,  146  P.  1125,  94  Kan.  409. 

Where  a  case  is  tried  to  the  court,  it  is  error  to  refuse  to  make  separate 


§  794a  TRIAL  (Ch.  13 

dictate  how  a  fact  shall  be  found,41  though  he  can  and  should  make 
a  proper  and  timely  request.42  It  is  not  necessary  for  the  court  to 

findings  requested,  or  to  make  them  so  definite  that  the  party  may  have  a  fair 
opportunity  to  except  on  the  conclusions  of  law  involved.  Vickers  v.  Buck's 
Stove  &  Range  Co.,  79  P.  160,  70  Kan.  584. 

A  party  to  an  action  tried  by  the  court  without  a  Jury  is  entitled,  on  re- 
quest, to  have  all  or  any  of  the  issuable  facts  on  which  there  is  any  evidence 
found  separate  from  the  conclusions  of  law.  Seward  v.  Rheiner,  43  P.  423,  2 
Kan.  App.  95. 

Rev.  Laws  1910,  §  5017,  as  to  separate  findings  of  law  and  fact,  where  re- 
quested, was  intended  to  enable  parties  to  have  placed  on  record  the  facts 
on  which  litigated  rights  depend,  as  well  as  court's  conclusions  of  law,  so 
that  exceptions  thereto  may  be  taken.  Coleman  v.  James  (Okl.)  169  P.  1064. 

In  an  action  without  a  jury,  the  court  was  asked  to  state  its  findings  of 
fact  and  conclusions  of  law  separately,  and  acceded  to  the  request,  but  sub- 
sequently declined  to  make  such  findings  and  conclusions.  Held,  that  the 
record  showing  that  the  refusal  was  made  with  the  consent  of  the  plaintiff 
in  error  was  not  ground  of  error.  Sails  v.  Barons,  20  P.  485,  40  Kan.  697. 

It  is  the  duty  of  the  court  to  comply  with  a  request  at  the  commencement 
of  a  trial  to  prepare  findings  of  fact  and  conclusions  of  law,  and  if  such  find- 
ing state  in  separate  paragraphs  the  facts  presented  so  that  they  may  be 
readily  understood,  and  so  it  will  be  apparent  what  conclusions  were  reached 
and  the  facts  upon  which  such  conclusions  were  founded,  it  will  be  deemed  a 
sufficient  compliance  with  the  request,  though  some  of  the  paragraphs  contain 
a  compound  of  fact  and  law,  and  do  not  in  every  instance  separate  with  tech- 
nical accuracy  the  findings  of  fact  from  the  conclusions  of  law.  Harper  v. 
Harper,  113  P.  300,  83  Kan.  761. 

«  Caulk  v.  Lowe  (Okl.)  178  P.  101. 

Where,  in  a  trial  without  a  jury,  the  court  states  the  findings  and  conclu- 
sions contemplated  by  statute,  error  cannot  be  predicated  on  the  court's  re- 
fusal to  answer  questions  of  fact.  M.  R.  Smith  Lumber  Co.  v.  Russell,  144 
P.  819,  93  Kan.  521. 

42  Right  of  parties  under  Rev.  Laws  1910,  §  5017,  to  require  special  finding 
of  facts  and  separate  conclusions  of  law,  is  waived,  where  no  request  is  made 
until  after  court  has  announced  general  findings  and  conclusions.  German 
State  Bank  of  Elk  City  v.  Ptachek  (Okl.)  169  P.  1094. 

In  the  absence  of  a  special  request  for  a  finding  on  a  material  issue  in  a 
case,  it  is  not  error  for  the  court  to  fail  to  make  such  finding.  Kellogg  v.  Bis- 
santz,  32  P.  1090,  51  Kan.  418. 

A  request  to  the  court  to  state  separately  findings  of  fact  and  conclusions 
of  law  is  too  late,  when  made  after  the  conclusion  of  the  trial,  and  after  a 
general  finding  has  been  announced.  Allen  v.  Dodson,  17  P.  667,  39  Kan.  220. 

Where,  in  an  action  tried  by  the  court  without  a  jury,  the  judgment  is 
rendered  on  March  30,  1885,  and  the  motion  for  a  new  trial  is  not  argued  and 
decided  until  April  25,  1885,  and  no  request  or  intimation  is  given  to  the  court 
by  either  party  that  it  is  desirable  that  the  court  should  state  its  conclusions 
of  fact  and  law  separately,  in  writing,  before  it  announces  its  findings,  and  not 
until  the  motion  for  a  new  trial  is  overruled  and  final  judgment  entered,  the 
request  is  made  too  late,  and  the  court  commits  no  error  in  refusing,  upon  a 


Art.  1)  IN  GENERAL  §  794a 

state  its  findings,  except  generally,  unless  a  request  therefor  was 
made.48 

The  trial  court's  findings  of  fact,  reasonably  supported  by  evi- 
dence, will  not  be  disturbed.44 

A  general  finding  is  a  special  finding  of  everything  necessary  to 
sustain  it.45  It  has  the  weight  of  a  verdict.46  But  the  court's  opin- 
ion does  not  constitute  a  finding  of  fact  within  this  rule.47 

request  made  at  such  time,  to  state  in  writing  its  findings.  Wilcox  v.  Bying- 
ton,  12  P.  826,  36  Kan.  212. 

Where  the  trial  of  a  case  is  submitted  to  the  court  without  a  jury,  the  court 
may  find  generally,  and  without  stating  its  conclusions  of  fact  found  separate- 
ly from  its  conclusions  of  law,  unless  requested  to  find  specially  before  the 
general  finding  is  made,  and  the  judgment  rendered  thereon.  Smythe  v.  Par- 
sons, 14  P.  444,  37  Kan.  79. 

Judgment  will  not  be  reversed  for  trial  court's  failure  to  make  detailed  spe- 
cial findings  of  fact,  where  no  findings  were  presented  by  parties,  and  where 
court  makes  special  findings,  somewhat  general  in  nature,  but  covering  all  is- 
sues involved  in  action.  Harris  v.  Morrison,  163  P.  1062,  100  Kan.  157. 

A  party  violating  a  rule  of  court  that  an  application  for  separate  findings  of 
fact  and  conclusions  of  law  shall  be  made  before  the  introduction  of  evidence 
cannot  complain  of  the  failure  to  comply  with  an  untimely  request  for  sepa- 
rate findings  of  fact  and  conclusions  of  law.  Smith  v.  City  of  Washington, 
141  P.  250,  92  Kan.  646. 

43  Cook  v.  State,  130  P.  300,  35  Okl.  653. 

44  Union  Sav.  Ass'n  v.  Cummins,  78  Okl.  265,  190  P.  869. 

Findings  of  fact  and  conclusions  of  law  made  in  a  will  contest  held  too  gen- 
eral to  meet  requirements  of  Rev.  Laws  1910,  §  5017.  Coleman  v.  James  (Okl.) 
169  P.  1064. 

45  Miller  v.  Thompson,  80  Okl.  70,  194  P.  103;   Myers  v.  Hubbard,  80  Okl. 
97,  194  P.  433 ;   Weaver  v.  Drake,  79  Okl.  277,  193  P.  45 ;   Elwood  Oil  &  Gas 
Co.  v.  Gano,  76  Okl.  287,  185  P.  443;  Theodore  Maxfield  Co.  v.  Andrus,  56  Okl. 
247,  155  P.  1163;   Shenners  v.  Adams,  46  Oki.  368,  148  P.  1023;  Deskins  v.  Ro- 
gers (Okl.)  180  P.  691;   In  re  Hoover's  Estate,  104  Kan.  635,  180  P.  275:   Gor- 
man v.  Carlock  (Okl.)  179  P.  38;   Jackson  v.  Bates  (Okl.)  170  P.  897;   Daris 
v.  First  State  Bank  of  Norman,  51  Okl.  498,  152  P.  122 ;   Conner  v.  Warner,  52 
Okl.  630,  152  P.  1116 ;   Limestone  Rural  Telephone  Co.  v.  Best,  56  Okl.  85,  155 
P.  901 ;  Shawnee  Life  Ins.  Co.  v.  Watkins,  53  Okl.  188,  156  P.  181 ;    Tripp  v. 
Deupree,  60  Okl.  47,  158  P.  923 ;    Schaf er  v.  Midland  Hotel  Co.,  137  P.  664,  41 
Okl.  Ill ;   J.  I.  Case  Threshing  Mach.  Co.  v.  Lyons  &  Co.,  138  P.  167,  40  Okl. ' 
356;    D.  J.  Faour  &  Bros.  v.  Morad,  139  P.  833,  40  OkL  597;   Wrought  Iron 
Range  Co.  v.  Leach,  123  P.  419,  32  Okl.  706;   Funk  v.  Shawnee  Fire  Ins.  Co., 
125  P.  35,  87  Kan.  568;    Brady  v.  Farmers'  Co-op.  Creamery  &  Supply  Co., 
154  P.  220,  97  Kan.  13. 

A  general  finding  in  favor  of  a  prior  settlement  made  of  property  rights  by 

46  Barnett  v.  Barnett,  78  Okl.  249,  189  P.  743. 

47  Rogers  v.  Harris,  76  Okl.  215,  184  P.  459. 

(609) 


§  794a  TRIAL  (Ch.  13 

Findings  of  the  trial  court  must  be  read  as  a  whole  to  determine 
their  sufficiency.48 

Where  the  court  makes  a  general  finding  for  plaintiff  and  certain 
special  findings,  but  fails  to  cover  all  the  issues  involved,  and  de- 
fendant fails  to  call  attention  to  the  omission,  his  right  to  com- 
plain of  omission  is  waived.49  However,  where  the  findings  of  fact 
and  conclusions  of  law  fully  protect  the  rights  of  parties,  a  refusal 
to  make  further  findings  and  conclusions  is  not  error.50 

A  finding  consisting  only  of  conclusions  from  basic  facts  found 
in  detail  cannot  be  upheld,  where  it  is  in  conflict  with  them.51 

Conclusions  of  law,  based  upon  findings  of  fact  outside  the  issues 
raised  by  the  pleadings,  cannot  be  sustained,  and  will  not  support  a 
judgment.52 

a  written  agreement  between  a  husband  and  wife  implied  a  finding  that  such 
settlement  was  just.  Howell  v.  Howell,  141  P.  412,  42  Okl.  286. 

A  general  finding  that  plaintiff  was  entitled  to  land  under  her  deed,  held  to 
include  a  finding  that  the  deed  had  been  properly  delivered  to  her,  or  that  its 
delivery  had  been  ratified,  where  such  facts  were  an  essential  part  of  her 
claim.  Oland  v.  Malson,  39  Okl.  456,  135  P.  1055. 

A  journal  entry  disclosing  that  "the  evidence  being  heard  and  the  argu- 
ments of  counsel  and  the  court,  being  fully  advised,  doth  find  for  the  defend- 
ant on  the  issues  joined,"  constituted  a  finding  for  defendant  on  the  disputed 
facts  in  issue.  Mason  v.  Harlow,  142  P.  243,  92  Kan.  1042,  denying  rehearing 
139  P.  384,  91  Kan.  807. 

A  finding  of  the  court  that  at  the  time  of  alleged  contract,  "plaintiff's  mind 
was  in  an  abnormal  condition,  superinduced  by  drunkenness,"  is  sufficiently 
exact  and  certain  to  show  that  he  was  then  mentally  incapable  of  making  a 
contract.  Franks  v.  Jones,  17  P.  663,  39  Kan.  236. 

Though,  in  an  action  to  determine  adverse  claims  to  a  tract  of  school  land, 
the  findings  of  fact  do  not  specifically  state  which  one  of  the  several  claim- 
ants first  settled  thereon,  a  judgment  against  one  of  them  necessarily  deter- 
mines the  fact  of  whether  he  made  the  first  settlement  against  him,  where  it 
is  essential  to  support  the  judgment,  and  is  not  in  conflict  with  the  findings 
made.  Christisen  v.  Bartlett,  95  P.  1130,  78  Kan.  118. 

48  (Okl.  1897)  El  Reno  Electric  Light  &  Telephone  Co.  v.  Jennison,  50  P. 
144,  5  Okl.  759. 

Findings  of  fact  are  to  be  construed  t'ogether.  Kuhn  v.  Johnson,  137  P.  990, 
91  Kan.  188. 

49  Simpson  Tp.  v.  Hill,  137  P.  348,  40  Okl.  233. 

Where  a  party  is  not  satisfied  with  the  findings  of  fact  made  by  the  trial 
court,  he  should  ask  the  trial  court  to  make  further  findings  or  modify  those 
made.  Cowling  v.  Greenleaf,  6  P.  907,  33  Kan.  570. 

50  Goodman  v.  Malcolm,  58  P.  564,  9  Kan.  App.  887. 
si  State  v.  Kirmeyer  128  P.  1114,  88  Kan.  589. 

52  Newby  v.  Myers,  24  P.  971,  44  Kan.  477. 

It  is  not  proper  that  the  findings  be  confined  to  the  issues  presented  in  the 

(670) 


Art.  1)  IN  GENERAL  §§  794a~794b 

Where  the  conclusions  of  fact  are  inconsistent  with  the  conclu- 
sions of  law,  the  conclusions  of  fact  control.63 

§  794b.     Agreed  statement  of  facts 

When  the  parties  to  an  action  agree  to  admit  all  the  facts  upon 
which  they  desire  to  have  the  case  submitted  to  the  court,  they  have 
agreed  upon  what  the  facts  in  the  case  are;  and  when  such  facts 
.  are  communicated  to  the  court  for  the  purpose  of  having  it  draw 
conclusions  of  law  therefrom,  and  to  render  judgment  thereon,  they 
become  an  agreed  statement  of  facts.54 

An  "agreed  statement  of  facts"  is  analogous  to  a  special  verdict, 
and  must  state  the  ultimate  facts.56 

Where  a  case  is  presented  on  an  agreed  statement  of  facts,  the 
only  question  that  can  be  considered  is  whether  they  require  a  judg- 
ment for  the  plaintiff  as  a  matter  of  law,  and  no  inference  of  fact 
can  be  drawn.66 

Agreements  made  to  avoid  continuances,  or  for  other  specific 
purposes,  by  their  terms  limited  to  particular  occasions,  possess 
no  force  beyond  the  occasion  or  after  the  purpose  has  been  accom- 
plished.67 

A  written  statement  of  facts,  purporting  to  be  the  "facts  in  the 
above-entitled  cause,"  properly  entitled,  and  signed  by  the  parties 
to  a  cause,  or  their  attorneys,  and  filed  in  the  cause  for  use  as  evi- 
dence, and  thereafter  so  used  at  the  hearing  in  the  probate  court, 

petition.  If  the  findings  are  in  response  to  the  issues  presented  by  all  the 
pleadings  taken  together,  they  are  pertinent.  Boynton  v.  Hardin,  58  P.  1007, 
9  Kan.  App.  166. 

Where  defendant,  without  objection,  proved  a  set-off  under  a  count  to  which 
a  demurrer  had  been  sustained,  after  which  the  court  treated  the  count  as 
part  of  the  pleadings,  a  finding  by  the  court  allowing  It  was  within  the  issues. 
Barry  v.  Barry,  59  P.  685,  9  Kan.  App.  884. 

53  Board  of  Com'rs  of  Wyandotte  County  v.  Arnold,  30  P.  486,  49  Kan.  279. 

5*  Noble  v.  Barter,  49  P.  794,  6  Kan.  App.  823. 

BS  Longmeyer  v.  Lawrence,  50  Okl.  457,  ICO  P.  905. 

ce  Goodwin  v.  Kraft,  101  P.  856,  23  Okl.  329. 

57  Loman  v.  Paullin,  51  Okl.  294,  152  P.  73. 

Where,  in  an  action  to  recover  possession  of  improvements  on  a  town  lot, 
the  title  to  which  is  in  controversy,  stipulations  are  filed,  reciting  that  a  con- 
test was  then  pending  before  the  Secretary  of  the  Interior,  and  judgment  for 
plaintiff  is  reversed,  and  on  second  trial  plaintiff  offers  the  former  agreed 
statement  of  facts,  its  exclusion  was  proper,  where  it  is  shown  that  after  the 
entering  into  of  the  stipulations  the  contest  over  the  lot  had  been  decided. 
Capital  Townsite  Co.  v.  Brown,  126  P.  722,  34  Okl.  568. 

(671) 


§§  794b-795  TRIAL  (Ch.  13 

is  a  general  and  solemn  admission  of  the  facts  and  binding  upon  the 
district  court  upon  appeal,  and  conclusive  in  all  further  proceedings 
in  the  cause,  unless  some  portions  thereof  are  uncertain  and  of 
doubtful  interpretation,  in  which  case  evidence  aliunde  will  be  re- 
ceived upon  such  points  of  doubtful  and  uncertain  interpretation.68 

A  stipulation  as  to  evidence  should  be  so  interpreted  as  to  carry 
into  effect  the  intent  of  the  parties  and  the  promotion  of  a  fair 
trial.59 

A  stipulation  by  defendant  that  plaintiff  is  entitled  to  recover,  un- 
less an  agreed  state  of  facts  constitutes  a  defense,  waives  any  ques- 
tion of  variance.60 

Where  an  action  is  tried  on  an  agreed  statement  of  facts  and  it  re- 
cites a  statute  of  another  state  as  a  fact,  counsel  cannot  claim  that 
there  are  other  facts  which  the  court  will  presume  to  exist.61 

The  matter  of  permitting  a  party  to  withdraw  from  a  stipulation 
concerning  a  pending  case  rests  within  the  sound  discretion  of  the 
court62 

Where  parties  stipulated  what  question  should  be  submitted  to 
the  court,  it  was  not  an  abuse  of  discretion  for  the  court  to  refuse  to 
permit  one  party  to  withdraw  from  the  stipulation  after  the  ques- 
tion had  been  argued.68 

In  submitting  an  action  by  agreement,  on  the  evidence  before 
the  referee,  plaintiff  waived  his  motion  for  judgment  on  the  find- 
ings of  the  referee,  and  submitted  the  cause  on  the  pleadings  and 
evidence  to  the  court.64  . 

§  795.     Submission  without  suit 

"Parties  to  a  question,  which  might  be  the  subject  of  a  civil  ac- 
tion, may  without  action  agree  upon  a  case  containing  the  facts 
upon  which  the  controversy  depends,  and  present  a  submission 
of  the  same  to  any  court,  which  would  have  jurisdiction  if  an  ac- 
es Blankinship  v.  Oklahoma  City  Light  &  Water  Power  Co.,  43  P.  1088,  4 
Okl.  242. 

ea  Chicago  Live  Stock  Commission  Co.  v.  Fix,  78  P.  316,  15  Okl.  37;  Same 
v.  Connally,  78  P.  318,  15  Okl.  45. 

so  Brennan  v.  Shanks,  103  P.  705,  24  Okl.  563. 

ei  Williams  v.  Hirschfield,  122  P.  539,  32  Okl.  598. 

ez  Georgia  Home  Ins.  Co.  v.  Halsey,  133  P.  202,  37  Okl.  678. 

68  Georgia  Home  Ins.  Co.  v.  Halsey,  133  P.  202,  37  Okl.  678. 

«*  Walker  v.  Walker,  88  P.  1127,  17  Okl.  467. 

(672) 


Art.  2)         ARGUMENT  AND  CONDUCT  OF  COUNSEL         §  796 

tion  had  been  brought.  But  it  must  appear,  by  affidavit,  that  the 
controversy  is  real,  and  the  proceedings  in  good  faith  to  determine 
the  rights  of  the  parties.  The  court  shall  thereupon  hear  and  de- 
termine the  case,  and  render  judgment  as  if  an  action  were  pend- 
ing." 66 

ARTICLE  II 

ARGUMENT  AND  CONDUCT  OF  COUNSEL 

Sections 

796.  Opening  statement. 

797.  Argument. 

798.  Right  to  open  and  close. 

799.  Retaliatory  statements. 

800.  Conduct. 

801.  Objections     and     exceptions. 

§  796.     Opening  statement 

The  party  who  does  not  have  the  burden  of  proof  must  make  his 
statement  immediately  after  that  of  the  adverse  party,  unless  the 
court  for  special  reason  otherwise  directs.66 

Fullness  or  brevity  of  an  opening  statement  is  largely  within 
discretion  and  control  of  trial  court.67 

On  a  motion  for  judgment  on  the  averments  in  the  petition  and 
the  opening  statement  of  counsel,  they  should  be  liberally  inter- 
preted.68 However,  if  the  plaintiff's  counsel,  in  making  the  open- 
ing statement  of  his  case  to  the  court  and  jury,  admits  or  states 
facts  the  existence  of  which  absolutely  precludes  a  recovery  by 
him,  the  court  may  close  the  trial  at  once,  and  give  judgment 
against  plaintiff.69 

es  Rev.  Laws  1910,  §  5303. 

66  Kali  Inla  Coal  Co.  v.  Ghinelli,  55  Okl.  289,  155  P.  606. 

«7  Caldwell  v.  Skinner,  101  Kan.  32,  181  P.  568. 

In  making  a  statement  of  the  case  at  the  trial,  either  party  may  make  a 
statement  as  complete  as  he  desires,  or  may  omit  any  statement,  at  his  dis- 
cretion. Glenn  v.  Missouri  Pac.  Ry.  Co.,  124  P.  420,  87  Kan.  391,  judgment 
affirmed  on  rehearing  128  P.  362,  88  Kan.  235. 

es  Moffatt  v.  Fouts,  160  P.  1137,  99  Kan.  118. 

6»  Lindley  v.  Atchison,  T.  &  S.  F.  R.  Co.,  28  P.  201,  47  Kan.  432;  Coffeyville 
Mining  &  Gas  Co.  v.  Carter,  70  P.  635,  65  Kan.  565 ;  Brashear  v.  Rabenstein, 
80  P.  950,  71  Kan.  455 ;  Missouri  Pac.  Ry.  Co.  v.  Hartman,  49  P.  109,  5  Kan. 
App.  581. 

The  statute  authorizing  a  party  on  whom  the  burden  rests  to  state  his  case 

HON.PL.&PBAC.— 43  (673) 


§  796  TRIAL  (Ch.  13 

Objection  to  the  plaintiff's  opening  statement,  as  not  stating 
facts  constituting  a  cause  of  action,  should  be  overruled,  where  the 
lack  of  the  fullness  is  supplied  by  the  allegations  of  the  petition.70 
or,  if  the  petition  states  a  cause  of  action,  it  is  error  on  motion  of 
the  defendant,  to  dismiss  the  cause,  and  render  judgment  against 
the  plaintiff  on  the  opening  statement  of  the  plaintiff's  counsel.71 

Oral  admission  of  a  material  fact  by  the  attorney  in  his  opening 
statement  to  the  jury,  if  distinct  and  formal  and  made  to  dispense 
with  the  proof  of  some  fact  at  the  trial,  is  binding  upon  the  party 
making  it; 72  but,  where  the  opening  statement  is  not  a  solemn  ad- 
mission of  some  controverted  question  of  fact,  it  is  error  to  instruct 

and  the  evidence  by  which  he  expects  to  sustain  it  is  permissive  only,  and  the 
issues  are  made,  not  by  it,  but  by  the  pleading,  so  that,  if  a  party  does  make 
such  a  statement,  and  there  is  a  substantial  variance  between  the  statement 
and  the  pleadings,  it  is  no  ground  on  which  to  base  a  motion  for  judgment 
in  favor  of  the  opposite  party  unless  such  statement  admits  facts  barring  re- 
covery. Stewart  v.  Rogers,  80  P.  58,  71  Kan.  53. 

In  action  for  damages  for  false  representations  inducing  a  purchase  of  an 
interest  in  an  insolvent  business,  refusal  to  direct  a  verdict  upon  the  open- 
ing statement  of  plaintiff's  counsel  held  not  an  abuse  of  discretion.  Abmeyer 
v.  German-American  State  Bank,  103  Kan.  356,  179  P.  368. 

Motion  for  judgment  on  opening  statement  of  counsel  should  be  denied,  un- 
less such  statement  solemnly  admits  facts  made  to  remove  such  facts  from 
controversy  and  which  facts  so  admitted  show  that  party  making  statement 
is  not  entitled  to  recover.  Brady  v.  Ratkowsky  (Okl.)  171  P.  717.  Opening 
statement  made  by  defendant  in  an  action  upon  an  account  for  goods  sold  held 
not  sufficient  upon  which  to  predicate  a  judgment  for  plaintiff.  Id. 

Where  the  petition  alleges  a  cause  of  action,  and  reply  to  answer  is  suffi- 
cient, a  peremptory  instruction  for  defendant  on  the  pleadings  and  plaintiff's 
opening  statement  is  error,  unless  statement  contains  admissions  barring  a  re- 
covery. King  v.  Lane  (Okl.)  169  P.  901,  L.  R.  A.  1918C,  351. 

Where  defendant  by  answer  admits  the  usurious  character  of  a  note  and 
denies  no  fact  essential  to  plaintiff's  recovery  of  the  penalty  provided  for  by 
Const,  art.  14,  §  3,  except  knowledge  of  such  usurious  character,  and  in  his 
opening  statement  to  the  jury  assumes  the  same  attitude,  a  motion  for  a  di- 
rected verdict  on  the  opening  statement  is  properly  granted.  First  State  Bank 
of  Keota  v.  Bridges,  39  Okl.  355,  135  P.  378. 

In  a  suit  on  an  insurance  policy,  plaintiff's  counsel,  in  stating  his  case  to 
the  jury,  said:  "The  reason  that  we  make  this  proof  is  to  show  you  that  an 
insurance  company  cannot  issue  a  policy,  take  a  man's  money  and  give  him 
something  in  return  which  is  absolutely  worthless  the  moment  it  is  issued — 
not  worth  the  paper  it  is  written  on."  Held,  that  there  was  no  prejudicial 
error.  Phenix  Ins.  Co.  of  Brooklyn  v.  Weeks,  26  P.  410,  45  Kan.  751. 

70  Noble  v.  Frack,  48  P.  1004,  5  Kan.  App.  786. 

71  Sullivan  v.  Williamson,  98  P.  1001,  21  Okl.  844. 

72  Hunt  v.  W.  T.  Rawleigh  Medical  Co.  (Okl.)  176  P.  410. 

(674) 


Art.  2)  ARGUMENT   AND   CONDUCT   OF   COUNSEL  §§    796~797 

that  it  contains  a  conclusive  admission,  the  question  being  one  for 
the  jury.73 

Where  plaintiff's  counsel  in  his  opening  statement  recites  a  con- 
dition of  facts  which  would  entitle  him  to  recover  only  certain 
damages,  and  such  statement  is  a  departure  from  the  facts  alleged 
in  the  petition,  it  is  prejudicial  error  to  overrule  an  objection  there- 
to, and  try  the  case  without  either  having  the  petition  amended  or 
striking  out  one  or  the  other  of  such  causes  of  action.74 

Where,  in  ejectment,  the  counsel  in  his  opening  statement  spoke 
of  the  defendant's  conversion  of  plaintiff's  personalty,  and  the 
court  without  objection  permitted  evidence  as  to  damages  for  such 
conversion,  though  it  was  not  pleaded,  the  pleading  should  be  con- 
strued as  broad  enough  to  include  those  elements  of  damage,  or  it 
should  be  considered  that  the  issues  were  enlarged  by  consent  of 
parties.75 

§  797.     Argument 

A  party  is  entitled  to  be  heard  by  counsel  in  the  argument  of  a 
question  of  fact  submitted  to  the  jury.76 

It  is  within  the  court's  discretion  to  limit  the  time  of  argu- 
ment;77 and  where  the  case  is  tried  by  the  court,  and  it  is  satis- 

73  A  distinct  and  formal  oral  admission  of  a   material  fact  made  in  the 
opening  statement  to  dispense  with  proof  is  conclusive  on  the  party  making 
same,  but  an  alleged  admission  of  doubtful  meaning  is  not  conclusive,  espe- 
cially where  nullified  by  other  statements.    Patterson  v.  Morgan,  53  Okl.  95, 
155  P.  694. 

74  Hunter  Milling  Co.  v.  Allen,  69  P.  159,  65  Kan.  158. 

That  plaintiff  in  his  petition  designated  certain  property  as  "merchandise," 
while  in  his  opening  statement  to  the  jury  he  referred  to  it  as  "household 
goods,"  did  not  constitute  such  variance  as  to  authorize  the  direction  of  a 
verdict  for  defendant.  Red  Ball  Transfer  &  Storage  Co.  v.  Deloe,  30  Okl.  522, 
120  P.  575. 

7  s  Custer  v.  Royse,  104  Kan.  339,  179  P.  353. 

7 a  Ely  Walker  Dry  Goods  Co.  v.  Blake,  59  Okl.  103,  158  P.  381. 

In  a  case  tried  by  jury,  where  particular  questions  of  fact  were  allowed 
and  settled  before  argument,  it  was  error  for  the  court  to  refuse  to  allow  coun- 
sel, in  argument,  to  call  the  attention  of  the  jury  to  each  question,  or  to  sug- 
gest or  advise  them  what  answers  should  be  made  thereto  from  the  evidence 
heard.  Stacy  v.  Cook,  61  P.  399,  62  Kan.  50. 

77  It  was  not  an  abuse  of  discretion  to  limit  the  argument  of  counsel  to  15 
minutes.  Murphy  v..Colton,  44  P.  208,  4  Okl.  181. 

.The  action  of  the  court  in  limiting  the  time  of  argument  of  counsel  held 
not  an  abuse  of  discretion.  Diamond  v.  Perry,  46  Okl.  16,  148  P.  88. 

It  is  not  an  abuse  of  discretion,  in  an  action  tried  by  the  court  alone,  where 

(075) 


§  797  TRIAL  (Ch.  13 

fied  as  to  the  evidence  and  the  law,  it  is  not  compelled  to  listen  to 
any  argument.78 

No  error  can  be  predicated  on  the  interruption  of  counsel  for 
the  purpose  of  excluding  from  the  consideration  of  the  jury  im- 
proper testimony  admitted  in  his  client's  behalf;  counsel  being 
permitted  ample  time  thereafter  to  discuss  the  evidence  properly 
received  in  the  case.79 

The  opening  argument  should  be  a  complete  presentation  of  the 
counsel's  theory  of  the  case,  and,  when  the  opposing  counsel  elects 
not  to  reply,  no  further  argument  by  the  opening  counsel  should 
be  allowed  except  in  the  discretion  of  the  trial  judge;80  but,  if 
the  plaintiff's  counsel  is  permitted  to  reargue  the  case,  it  is  re- 
versible error  to  refuse  defendant's  request  to  answer.81 

only  the  construction  of  a  plain,  unambiguous  statute  is  to  be  determined,  to 
refuse  to  hear  arguments  of  counsel.  Godfrey  v.  Wright,  56  F.  1051,  8  Okl. 
151. 

78  Barnes  v.  Benham,  75  P.  1130,  13  Okl.  582. 

79  Dunn  v.  Jaffray,  13  P.  781,  36  Kan.  408. 

so  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Lambert,  123  P.  428,  32  Okl.  665. 

Where  on  the  trial  the  arguments  are  limited  to  one  hour  on  each  side, 
and  the  party  on  whom  rests  the  burden  of  the  issue  announces  that  he  de- 
sires to  occupy  only  30  minutes,  and  requests  the  court  to  inform  him  when 
the  time  has  expired,  which  the  court  does,  and  thereupon  the  attorney  for 
the  opposing  party  asks  that  the  case  be  submitted  without  further  argument, 
it  is  prejudicial  error  to  permit  another  attorney  to  address  the  jury  in  be- 
half of  the  first  party.  St.  Louis  &  S.  F.  R.  Co.  v.  Vanzego,  80  P.  944,  71  Kan. 
427. 

Where  the  trial  court  informs  the  attorneys  that  each  side  will  be  given  an 
hour  and  a  quarter  for  argument,  and  plaintiff's  attorney  announces  that  he 
will  consume  30  minutes  only  in  opening,  and  requests  the  court  to  notify  him 
when  30  minutes  have  expired,  and  the  court  acts  upon  his  suggestion,  defend- 
ant's attorney,  by  waiving  all  argument  upon  his  part,  is  not  guilty  of  mis- 
conduct, and  the  court  does  not  commit  error  in  refusing,  in  its  discretion,  fur- 
ther time  for  plaintiff's  attorney  to  argue  his  case.  Southern  Kansas  Ry.  Co. 
v.  Michaels,  30  P.  408,  49  Kan.  388. 

On  a  trial  without  a  jury,  plaintiff's  counsel  waived  argument  and  asked 
defendant's  counsel,  in  the  presence  of  the  court,  if  they  wished  to  argue  the 
case.  Defendant's  counsel  kept  silent,  and  did  not  demand  a  right  to  argue, 
and  the  court  then  decided  the  case.  Held  that,  after  the  decision,  defendant 
could  not  content  that  he  had  not  waived  argument.  Piatt  v.  Head,  10  P. 
822,  35  Kan.  282. 

si  Plaintiff  is  not  entitled  to  reargue  the  case  after  defendant  has  waived 
argument ;  and,  where  he  is  permitted  to  do  so,  it  is  reversible  error  to  refuse 
defendant's  request  to  answer.  Board  of  Com'rs  of  Nemaha  County  v.  Albert, 
51  P.  307,  6  Kan.  App.  165. 

(676) 


Art.  2)        ARGUMENT  AND  CONDUCT  OF  COUNSEL         §  797 

Permitting  counsel  to  instruct  the  jury  that  it  is  improper  to  ar- 
rive at  a  verdict  by  addition  and  division  is  not  reversible  error, 
when  he  did  not  advise  them  how  to  reach  a  verdict.  Judgment 
51  P.  623,  6  Kan.  App.  585,  affirmed.82 

In  an  action  for  injury  by  defendant's  automobile,  that  certain 
slight  references  to  a  casualty  company  were  withdrawn  with  an 
instruction  to  disregard  them  is  not  material  error.83 

In  an  action  for  personal  injuries,  a  statement  by  the  attorney 
for  the  plaintiff,  that,  if  the  jury  answer  a  certain  special  question 
"yes,"  then  their  verdict  must  be  for  the  defendant,  is  not  ground 
for  reversal  as  stating  to  the  jury  that  their  answers  to  a  special 
question  of  fact  must  be  consistent  with  their  general  verdict.84 

In  an  action  for  personal  injury  from  an  automobile  collision,  it 
is  not  error  for  counsel  in  his  closing  argument  to  comment  on  the 
meaning  of  a  statute  when  no  objection  is  made  thereto.85 

In  an  action  against  a  railroad  company  for  personal  injuries,  a 
statement  of  plaintiff's  counsel  in  his  argument  that  "it  matters  not 
if  this  railroad  company  has  among  its  stockholders  counts  and 
princes  and  a  young  girl  who  has  been  sold  to  a  count,"  though  im- 
proper, did  not  require  a  reversal,  where  the  verdict  was  for  a  small 
amount,  and  counsel  failed  to  request  the  court  to  admonish  the 
jury  not  to  consider  same.86 

Where  the  plaintiff,  an  employe  of  a  railway-construction  com- 
pany, who  was  injured  while  at  work  on  a  tower  wagon  standing 
on  the  tracks  of  a  street  railway  over  which  cars  were  running, 
brought  action  against  both  companies,  and  a  dem'urrer  by  the 
railway  company  to  the  evidence  was  sustained,  it  was  proper  for 
the  court  to  refuse  to  permit  counsel  for  the  construction  company 
in  an  argument  to  the  jury  to  comment  on  that  part  of  the  petition 
setting  forth  the  averments  against  the  railway  company.87 

Allowing  plaintiff's  attorney  in  his  closing  argument  in  a  civil 

82  Missouri,  K.  &  T.  Ry.  Co.  v.  Steinberger,  55  P.  1101,  60  Kan.  856. 

.  ss  Stafford  v.  Noble,  105  Kan.  219,  182  P.  650. 

84  Missouri,  K.  &  T.  Ry.  Co.  v.  Wade,  85  P.  415,  73  Kan.  359. 

SB  in  action  for  personal  injury  from  automobile  collision,  closing  arguments 
of  plaintiffs  counsel  as  to  meaning  of  Gen.  St.  1915,  §  507,  not  then  objected 
to,  held  not  unreasonable  or  unfair.  Rudy  v.  Headley,  103  Kan.  417,  173  P. 
913. 

ss  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  O'Connor,  142  P.  1111,  43  Okl.  268. 

87  North  American  Ry.  Const.  Co.  -v.  Patry,  61  P.  871,  10  Kan.  App.  55. 

(677) 


§§  797-798  TRIAL  (Ch.  13 

action  to  accuse  defendants,  husband  and  wife,  with  being  persist- 
ent violators  of  the  prohibitory  law,  and  with  having  been  in  jail 
for  such  offenses,  is  ground  for  reversal.88 

Where,  in  an  action  against  a  city  for  damages  sustained  by 
plaintiff  falling  into  a  ditch  dug  by  an  electric  company  under  a 
franchise,  there  was  no  issue  involving  indemnity  by  the  electric 
company  to  the  city  for  any  damages  sustained  by  reason  of  its 
negligence  in  constructing  the  ditch,  the  admission  in  evidence  of 
an  ordinance  containing  a  section  by  which  the  electric  company 
agreed  to  indemnify  the  city  against  such  damages  was  not  evi- 
dence to  prove  the  agreement  of  indemnity  so  as  to  justify  argu- 
ment of  plaintiff's  counsel  that  the  city  did  not  care  whether  judg- 
ment went  against  it  or  not.89 

The  scope  of  argument  of  the  counsel  allows  a  reference  to  evi- 
dence and  deductions  therefrom.90 

§  798.     Right  to  open  and  close 

The  party  bearing  the  burden  of  proof  has  the  right  to  open  and 
close  the  argument,91  but  such  right  my  be  waived  by  the  absence 

ss  Bean  v.  Kinseder  (Kan.)  135  P.  1180. 

89  City  of  Shawnee  v.  Sparks,  110  P.  884,  26  Okl.  665,  28  L.  R.  A.  (N.  S.)  519, 
Ann.  Cas.  1912B,  505. 

so  Spann  v.  State,  (Okl.  Or.  App.)  197  P.  531. 

Where,  in  an  action  for  injuries  it  Was  proved  that  defendant  sent  its  phy- 
sician to  attend  plaintiff,  argument  of  plaintiff's  counsel,  in  which  he  sought 
to  draw  deductions  as  to  the  reasons  why  defendant  sent  its  physician,  is  not 
error.  Enid  City  Ry.  Co.  v.  Reynolds,  126  P.  193,  34  Okl.  405. 

»i  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Lambert,  123  P.  428,  32  Okl.  665;  Baugh- 
man  v.  Baughman,  4  P.  1003,  32  Kan.  538 ;  Degan  v.  Tufts,  56  P.  1126,  8  Kan. 
App.  338;  Congdon  v.  McAlester  Carriage  &  Wagon  Factory,  56  Okl.  201,  155 
P.  597. 

Where  the  pleadings  do  not  disclose  the  exact  amount  plaintiff  is  entitled 
to?,  defendant,  before  being  entitled  to  open  and  close  the  argument,  should 
admit  such  amount  in  open  court.  Where  defendant  failed,  until  after  open- 
ing statements  were  made  and  introduction  of  some  evidence,  to  claim  his 
right  to  open  and  close  the  argument,  the  question  of  granting  or  refusing  his 
request  rested  in  the  court's  discretion.  Congdon  v.  McAlester  Carriage  & 
Wagon  Factory,  56  Okl.  201,  155  P.  597. 

Where  defendant  to  a  suit  for  libel  or  slander  pleads  justification,  he  as- 
sumes the  burden  of  proof,  and  is  entitled  to  open  and  close.  Stith  v.  Fullin- 
wieder,  19  P.  314,  40  Kan.  73. 

Since,  where  the  answer  in  an  action  on  an  accepted  order  admitted  the 
execution  and  acceptance  of  the  order,  but  stated  that  plaintiff  had  wrong- 
fully obtained  possession  of  it,  the  burden  was  on  defendant  to  prove  that 

(678) 


Art.  2)  ARGUMENT   AND   CONDUCT   OP   COUNSEL  §§  798~799 

of  a  timely  request,92  and  by  waiving  the  opening  a  party  waives 
a  right  to  close,  if  the  other  party  also  waives  argument.93 

Where  the  party  having  the  burden  of  proof  makes  an  inade- 
quate opening  argument,  and  the  opposing  party  does  not  reply, 
no  further  argument  should  be  allowed,  unless  the  court  in  its  dis- 
cretion permits  the  opening  party  to  make  a  further  argument,  in 
which  event  the  opposing  party  should  be  allowed  to  answer,  and 
the  party  upon  whom  the  burden  rests  should  be  allowed  to  close.9* 

When  a  case  involves  two  causes  of  action  and  the  burden  in 
the  first  is  on  plaintiff  and  in  the  second  on  defendant,  it  is  not 
important  which  litigant  opens  and  closes  so  long  as  each  has  a 
fair  opportunity  to  argue  his  side.95 

§  799.     Retaliatory  statements 

An  irrelevant  statement  of  counsel  in  condemnation  of  defend- 
ants for  violating  the  prohibitory  laws  is  not  ground  for  reversal, 
where  it  is  to  some  extent  induced  by  argument  of  opposing  coun- 
sel.96 

A  new  trial  will  not  be  granted  because  counsel  for  plaintiff  made 
improper  statements  to  the  jury,  where  defendant's  counsel  also 
made  improper  statements,  and  both  were  equally  at  fault.97 

the  possession  was  wrongfully  acquired,  defendant  had  the  right  to  open  and 
close.  Bartholomew  v.  Fell,  139  P.  1016,  92  Kan.  64. 

In  an  action  on  note  where  an  averment  of  partnership  of  defendants  was 
denied  under  oath  but  admitted  before  trial,  plaintiff  was  not  entitled  to  the 
opening  and  closing.  Murchison  v.  Nies,  123  P.  750,  87  Kan.  77. 

The  party  upon  whom  rests  the  burden  of  proof  may  open  and  close  the 
argument.  Bass  &  Harbour  Furniture  &  Carpet  Co.  v.  Harbour,  140  P.  956, 
42  Okl.  335*  Where  defendant,  without  objection,  assumes  the  burden  of 
proof  in  the  introduction  of  evidence,  his  answer  will  J)e  treated  as  amended 
to  sustain  his  right  to  open  and  close. 

92  Congdon  v.  McAlester  Carriage  &  Wagon  Factory,  56  Okl.  201,  155  P. 
597 ;  Lynde-Bowman-Darby  Co.  v.  Huff,  124  P.  1085,  33  Okl.  239. 

93  St.  Louis  &  S.  F.  R.  Co.  v.  Johnson,  86  P.  156,  74  Kan.  83. 

a*  Fire  Ass'n  of  Philadelphia  v.  Farmers'  Gin  Co.,  39  Okl.  162,  134  P.  443. 

95  White  v.  White,  160  P.  993,  99  Kan.  133. 

96  Bean  v.  Kindseder,  139  P.  1024,  92  Kan.  254,  reversing  judgment  on  re- 
hearing 135  P.  1180. 

97  Atchison,  T.  &  S.  F.  R.  Co.  v.  Dickerson,  45  P.  975,  4  Kan.  App.  345. 

(679) 


§§  800-801  TRIAL  (Ch.  13 

§  800.     Conduct 

That  counsel  for  the  plaintiff  in  a  personal  injury  case  repeated- 
ly asked  that  the  jury  might  be  permitted  to  examine  plaintiff's 
hip  in  the  jury  room  is  not  ground  for  reversal.98 

In  negligence  cases  where  there  may  be  indemnity  insurance, 
and  questions  to  jurors  as  to  whether  they  are  interested  in  in- 
demnity insurance  companies  are  therefore  competent,  counsel 
cannot  be  charged  with  misconduct  in  asking  such  questions  on  the 
ground  that  they  are  asked  for  the  purpose  of  prejudicing  jurors." 

§  801.     Objections  and  exceptions 

Statements  of  a  case  at  the  commencement  of  the  trial  are  not 
pleadings,  and  cannot  be  attacked  by  demurrer.1 

A  mere  exception  to  the  language  of  counsel  in  his  argument  to 
the  jury,  which  is  not  preceded  by  any  ruling  of  the  court,  is  in- 
sufficient to  raise  a  question  as  to  the  propriety  of  the  language 
used.2 

It  is  error  for  the  trial  court  to  refuse  and  neglect  to  sustain  an 
objection  to  prejudicial  remarks  of  counsel  and  to  neglect  to  prop- 
erly admonish  the  jury  in  regard  thereto.3 

An  attempt  by  the  plaintiff's  counsel  to  state  that  the  defendants 
were  indemnified  against  any  loss,  which  was  stopped  by  the  court 
and  the  jury  carefully  instructed  to  disregard  same  is  not  so  preju- 
dicial as  to  require  the  discharge  of  the  jury.4 

«s  Missouri  Pac.  Ry.  Co.  v.  Johnson,  53  P.  129,  59  Kan.  776. 
«»  Swift  &  Co.  v.  Platte,  74  P.  635,  68  Kan.  1. 

1  Glenn  v.  Missouri  Pac.  Ry.  Co.,  124  P.  420,  87  Kan.  391,  judgment  affirm- 
ed on  rehearing  128  P.  362,  88  Kan.  235.  ^ 

2  City  of  Kansas  City  v.  McDonald,  57  P.  123,  60  Kan.  481,  45  L.  B.  A.  429. 

3  St.  Louis  &  S.  F.  R.  Co.  v.  Stacy,  77  Okl.  165,  171  P.  870. 
*  Russell  v.  Watts,  150  P.  600,  96  Kan.  275. 

(680) 


Art.  3)  ISSUES  AND   TRIAL   THEREOF  §§    802-803 


ARTICLE  III 
ISSUES  AND  TRIAL  THEREOF 

DIVISION  I.— ISSUES  IN  GENERAL 

Sections 

802.  Issues  not  pleaded. 

DIVISION   II. — TAKING  CASE  OB  QUESTION   FROM  JURY 

803.  In  general. 

804.  Retrial. 

805-  Questions  of  law  and  fact. 

806.  Negligence  in  general. 

807.  Contributory  negligence — Assumption  of  risk. 

808.  Agency. 

809.  Will  contest. 

810-  Malicious  prosecution. 

811.  Libel  and  slander. 

812.  Weight  of  evidence  and  credibility  of  witnesses. 

813.  Uncontroverted  evidence. 

814.  Motions  and  demurrer. 

815.  Demurrer  to  evidence. 

816.  Effect  as  admission. 

817.  What  rulings  proper. 
818-  Cure  of  error. 

819.  Trial  by  court. 

820.  Ruling  and  judgment  sustaining  demurrer. 

821.  Form. 

822.  Direction  of  verdict. 

823.  Effect  of  motion. 

824.  Form  of  motion. 

v 

DIVISION  I. — ISSUES  IN  GENERAL 

§  802.     Issues  not  pleaded 

"There  can  be  no  feigned  issues;  but  a  question  of  fact,  not 
put  in  issue  by  the  pleadings,  may  be  tried  by  a  jury  upon  an  order 
for  the  trial,  stating  distinctly  and  plainly  the  question  of  fact  to 
be  tried;  and  such  order  is  the  only  authority  necessary  for  a 
trial."  5 

DIVISION  II. — TAKING  CASE  OR  QUESTION  FROM  JURY 

§  803.     In  general 

A  demurrer  to  the  evidence  may  be  sustained,  a  nonsuit  granted 
defendant,  or  a  verdict  may  be  directed  in  favor  of  either  of  the  par- 

o  Rev.  Laws  1910,  §  4652. 

(681) 


§  803  TRIAL  (Ch.  13 

ties  when  the  testimony  is  insufficient  to  support  a  different  ver- 
dict.6 In  other  words,  where  there  is  any  evidence  tending  to  sup- 
port the  issues  in  the  case,  although  slight,  it  should  be  submitted 
to  the  jury,  and  it  is  error  to  order  a  nonsuit  or  direct  a  verdict.7 

«  Holm  v.  Waters,  56  P.  507,  8  Kan.  App.  859 ;  Tingling  v.  Redwine,  69  P. 
810,  12  Okl.  64;  Kentucky  Refining  Co.  v.  Purcell  Cotton  Seed  Oil  Mills,  73 
P.  945,  13  Okl.  220;  Watkins  v.  Havighorst,  74  P.  318,  13  Okl.  128;  Pringey 
v.  Guss,  86  P.  292,  16  Okl.  82,  8  Ann.  Cas.  412. 

7  Sullivan  v.  Phoenix  Ins.  Co.,  8  P.  112,  34  Kan.  170 ;  Benninghoff  v.  Cub- 
bison,  26  P.  14,  45  Kan.  621;  McMullen  v. 'Carson,  29  P.  317,  48  Kan.  263; 
Snyder  v.  Stribling,  89  P.  222,  18  Okl.  168,  judgment  affirmed  Same  v.  Rosen- 
baum,  30  S.  Ct.  73,  215  U.  S.  261,  54  L.  Ed.  186. 

The  court  should  not  take  the  case  from  the  jury  unless,  as  a  matter  of 
law,  no  recovery  can  be  had  upon  any  view  which  can  properly  be  taken  of 
the  evidence.  St.  Louis  &  S.  F.  Ry.  Co.  v.  Knowles,  51  P.  230,  6  Kan.  App. 
790;  Union  Tp.  v.  Hester,  54  P.  923,  8  Kan.  App.  725. 

Where  plaintiff  has  made  a  prima  facie  case,  it  is  error  to  take  the  case 
from  the  jury.  Terry  v.  Anderson,  51  P.  800,  6  Kan.  App.  921. 

The  court  is  not  justified  in  taking  a  case  from  the  jury  where  the  state 
of  proof  is  such  that  reasonable  minds  might  reach  different  conclusions  from 
the  evidence  offered.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Wood,  72  P.  215,  66  Kan. 
613;  Lane  v.  Choctaw,  O.  &  G.  R,  Co.,  91  P.  883,  19  Okl.  324;  Duncan  v. 
Huse,  85  P.  589,  73  Kan.  432 ;  Avery  v.  Union  Pac.  R.  Co.,  85  P.  600,  73  Kan. 
563 ;  Darling  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  93  P.  612,  76  Kan.  893,  rehear- 
ing denied  94  P.  202,  76  Kan.  893 ;  Crane  v.  Cox,  49  P.  796,  6  Kan.  App.  405 ; 
Cole  v.  Missouri,  K.  &  O.  R.  Co.,  94  P.  540,  20  Okl.  227,  15  L.  R.  A.  (N.  S.) 
268;  St.  Louis-  &  S.  F.  R.  Co.  v.  Jamieson,  95  P.  417,  20  Okl.  654;  Citizens' 
Bank  of  Wakita  v.  Garnett,  95  P.  755,  21  Okl.  200;  Missouri,  K.  &  T.  Ry. 
Co.  v.  Walker,  113  P.  907,  27  Okl.  849. 

Where  there  is  some  evidence  tending  to  support  the  affirmative  of  an  issue 
it  cannot  be  taken  from  the  jury.  Harter  v  Atchison,  T.  &  S.  F.  R.  Co.,  38 
P.  778.  55  Kan.  250;  City  of  Ft.  Scott  v.  Peck,  50  P.  870,  58  Kan.  816;  Loob 
v.  Fenaughty,  55  P.  841,  60  Kan.  570;  Gifford  v.  Griffin  Ice  Co.,  66  P.  998, 
63  Kan.  716;  Burnett  V.  Hinshaw,  67  P.  1101,  64  Kan.  886;  Electric  Ry., 
Light  &  Ice  Co.  v.  Brickell,  85  P.  297,  73  Kan.  274 ;  Steelsmith  v.  Union  Pac. 
R.  Co.,  40  P.  992,  1  Kan.  App.  10;  City  of  Wichita  v.  Coggshall,  43  P.  842, 
3  Kan.  App.  540;  Hagan  v.  American  Building  &  Loan  Ass'n,  43  P.  1138, 
2  Kan.  App.  711 ;  Cherokee  &  P.  Coal  &  Mining  Co.  v.  Britton,  45  P.  100,  3 
Kan.  App.  292;  Niagara  Ins.  Co.  v.  Knapp,  47  P.  628,  5  Kan.  App.  880;  Skin- 
ner v.  Mitchell,  48  P.  450,  5  Kan.  App.  366 ;  Atchis-on,  T.  &  S.  F.  R.  Co.  v. 
Chenoweth,  49  P.  155,  5  Kan.  App.  810;  Hanlen  v.  Baden,  49  P.  615,  6  Kan. 
App.  635 ;  St.  Louis  &  S.  F.  Ry.  Co.  v.  Toomey,  49  P.  819,  6  Kan.  App.  410 ; 
McCormick.  Harvesting  Mach.  Co.  v.  Hayes,  53  P.  70,  7  Kan.  App.  141; 
Weatherford  v.  Strawn,  55  P.  485,  8  Kan.  App.  206;  Douglass  v.  Muse,  55 
P.  856,  8  Kan.  App.  856;  Continental  Ins.  Co.  of  New  York  v.  Gaston,  56  P. 
1129,  8  Kan.  App.  857;  City  of  Atchison  v.  Acheson,  57  P.  248,  9  Kan.  App. 
33 ;  Gilmore  v.  Bank  of  Garnett,  63  P.  89,  10  Kan.  App.  496 ;  Suess*  v.  Board 
of  Com'rs  of  Lane  County,  63  P.  451,  10  Kan.  App.  583;  Burnett  v.  Hinshaw, 

(682) 


Art.   3)  ISSUES  AND   TRIAL   THEREOF  §  803 

But  where  the  only  issue  under  the  evidence  is  one  of  law,  the  court 
may  withdraw  the  case  from  the  jury  and  render  judgment.8 

Where,  in  a  civil  case,  it  is  sought  to  prove  a  fact  by  circum- 
stantial evidence,  and  the  circumstances  taken  separately  or  col- 
lectively reasonably  tend  to  support  the  facts  sought  to  be  proved, 
it  is  a  question  for  the  jury  to  determine  which  of  two  theories  the 
circumstances  tend  more  reasonably  to  support.9 

The  court  must  construe  unambiguous  written  instruments  in- 
troduced in  evidence,  and  instructions  submitting  to  jury  construc- 
tion of  such  written  instruments  constitute  error.10 

63  P.  461,  10  Kan.  App.  583;  Belcher  v.  Whitlock,  56  P.  23,  6  Okl.  691; 
Myers  v.  First  Presbyterian  Church  of  Perry,  69  P.  874,  11  Okl.  544. 

It  is  error  to  withdraw  from  a  jury  the  consideration  of  a  material  issue 
of  fact  Richardson  v.  Fellner,  60  P.  270,  9  Okl.  513;  Farmers'  State  Bank 
v.  Spencer,  73  P.  297,  12  Okl.  597. 

It  is  only  where  a  statement  or  admission  made  to  a  jury  will  as  a  matter 
of  law  preclude  a  party  from  recovering  on  his  cause  or  defense  that  the 
court  has  authority  to  withdraw  such  cause  or  defense  from  the  jury.  Hall 
v.  Davidson,  84  P.  556,  73  Kan.  88. 

Where  an  issue  of  fact  is  presented  in  respect  to  whether  a  writing  was 
delivered  upon  a  condition  precedent  to  its  effectiveness,  it  is-  error  to  so  in- 
struct as  to  take  such  issue  from  the  jury.  Williamson  v.  Scully,  52  OkL 
531,  152  P.  839. 

s  Akin  v.  Baldwin  Piano  Co.,  62  Okl.  239,  162  P.  221. 

Where  no  question  of  fact  arises  in  a  case,  and  the  only  question  to  be 
decided  is  one  of  law  alone,  it  is  not  error  for  the  trial  judge  to  discharge 
the  jury,  and  decide  the  case.  Brown  v.  Cory,  59  P.  1097,  9  Kan.  App.  702. 

In  suit  by  trustee  in  bankruptcy  to  quiet  title  and  to  cancel  deed  to  bank- 
rupt's wife,  with  cross-petition  claiming  title,  undisputed  evidence  showing 
that  deed  was  void  raised  no  issue  for  jury  as  to  wife's  right  to  recover 
property,  and  court  properly  discharged  jury  and  rendered  judgment  for 
plaintiff,  in  view  of  Rev.  Laws  1910,  §  4993.  Plante  v.  Robertson  (Okl.)  175 
P.  840. 

Where,  in  replevin,  limitations  had  been  suspended  pending  the  removal 
of  property  from  the  state,  and  since  its  return  three  years  had  not  expired, 
the  court  did  not  err  in  refusing  to  submit  the  issue  of  limitations.  Vaut  v. 
Gatlin,  31  Okl.  394,  120  P.  273. 

a  Missouri,  K.  &  T.  Ry.  Co.  v.  Simerly  (Okl.)  180  P.  551. 

10  Littlefield  Loan  &  Investment  Co.  v.  Walkley  &  Chambers  (Okl.)  166  P.  90. 

Ordinary  railroad  rules  as  to  operation  of  trains  at  crossings,  etc.,  con- 
taining no  term  the  meaning  of  which  is  not  clear,  ought  to  be  so  interpreted 
by  the  court,  which  must  determine  in  every  instance  whether  it  needs  any 
evidence  in  aid  of  interpretation.  Missouri,  K.  &  T.  Ry.  Co.  v.  Missouri  Pac. 
Ry.  Co.,  103  Kan.  1,  175  P.  97. 

The  question  whether  certain  written  correspondence  discloses  a  settlement 
between  the  parties  at  a  certain  time  is  for  the  court  to  determine,  and  not 
for  the  jury.  Dobbs  v.  Campbell,  72  P.  273,  66  Kan.  805. 

(683) 


§§  803-805  TRIAL  (Ch.  13 

What  is  the  law  of  another  state,  though  a  question  of  fact,  is 
ordinarily  determined  by  the  court  without  a  jury.11 

§  804.     Retrial 

"In  all  cases  where  the  jury  are  discharged  during  the  trial,  or 
after  the  cause  is  submitted  to  them,  it  may  be  tried  again  imme- 
diately, or  at  a  future  time,  as  the  court  may  direct."  12 

§  805.     Questions  of  law  and  fact 

Where  the  evidence  is  conflicting  on  any  issue,  the  determination 
of  such  issue  is  a  question  of  fact,  which  in  a  jury  trial  should  be 
submitted  to  jury,  and  not  be  decided  by  the  court  as  a  matter  of 
law,  by  taking  the  case  or  issue  from  the  jury,  directing  a  verdict, 
or  sustaining  a  demurrer  to  the  evidence.13 

11  Hutchings,  Sealy  &  Co.  v.  Missouri,  K.  &  T.  Ry.  Co.,  114  P.  1077,  84 
Kan.  479,  41  L.  R.  A.  (N.  S.)  500,  rehearing  denied  121  P.  360,  86  Kan.  585. 

12  Rev.  Laws  1910,  §  5009. 

13  Katterhenry  v.  Williamson  (Okl.)  190  P.  404. 

Where  evidence  presents  issue  of  fact,_whether  clear  or  obscure,  it  is  duty 
of  court  to  submit  it  to  jury.  Blair  v.  Lewis,  57  Okl.  707,  157  P.  905 ;  State 
Bank  of  Westfield  v.  Kiser,  46  Okl.  180,  148  P.  685. 

Whether'  the  cause  of  action  sued  on  is  the  same  on  which  a  former  sxiit 
was  based,  and  whether  the  former  suit  was  disposed  of  before  the  second 
was  commenced,  are  questions  of  fact  properly  submitted  to  a  jury.  Ball  v. 
Biggam,  49  P.  678,  6  Kan.  App.  42. 

Meld  for  tJie  jury. — Whether  plaintiff  was  guilty  of  contributory  negligence, 
and  whether  defendant  was  negligent.  Clark  v.  St.  Louis  &  S.  F.  R.  Co., 
108  P.  361,  24  Okl.  764. 

Which  carrier's  negligence  was  the  proximate  cause  of  plaintiff's  injury. 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  St.  Louis  &  S.-^F.  Ry.  Co.,  41  Okl.  80,  135  P. 
353,  48  L.  R.  A.  (N.  S.)  509. 

Whether  persons  whose  negligent  acts  caused  injury  were  in  employ  or 
acting  under  direction  of  defendant  railroad.  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Beasley  (Okl.)  168  P.  200. 

Compress  company's  negligence  in  weighing  cotton.  Sapulpa  Co.  v.  Kimball 
&  Reading,  59  Okl.  93,  158  P.  935. 

Defendant's  negligence  in  allowing  oil  to  overflow  a  question  for  the  jury. 
Standard  Oil  Co.  v.  Glenn  (Okl.)  176  P.  900. 

The  railroad's  negligence  in  starting  a  train.  St.  Louis  &  S.  F.  R.  Co.  v. 
Cole,  49  Okl.  1,  149  P.  872,  L.  R.  A.  1915F,  866. 

In  an  action  under  the  federal  Employers'  Liability  Act  (U.  S.  Comp.  St. 
§§  8657-8665),  that  provision  of  the  Oklahoma  Constitution  (Const,  art.  23, 
§  6)  requiring  submission  to  the  jury  of  the  defense  of  assumption  of  risk 
does  not  apply.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Jackson,  61  Okl.  146,  160 
P.  736. 

Whether  the  building  material  placed  in  a  street  by  an  abutting  owner 
remained  in  the  street  an  unreasonable  time,  and  whether  reasonable  care 
was  exercised  to  prevent  interference  with  the  property  or  business  of  an 

(684) 


Art.  3)  ISSUES  AND   TRIAL  THEREOF  §   805 

j 

adjacent  owner.  Culbertson  v.  Alexander,  87  P.  863,  17  Okl.  370,  10  Ann. 
Cas.  916. 

In  an  action  for  the  price  of  goods  sold,  whether  an  order  was  accepted 
on  the  terms  proposed,  and  whether  there  was  a  delivery.  Humphrey  v.  Tim- 
ken  Carriage  Co.,  75  P.  528,  12  Okl.  413. 

What  constitutes  a  reasonable  time  within  which  objection  must  be  made 
to  a  statement  of  account.  Lamont  Mercantile  Co.  v.  Piburn,  51  Okl.  618,  152 
P.  112. 

In  a  physician's  action  for  services  rendered  in  attending  an  injured  em- 
ploye1 of  defendant  at  the  request  of  defendant's  agent,  whether  defendant 
was  notified  of  plaintiff's  employment.  Roff  Oil  &  Cotton  Co.  v.  King,  46 
Okl.  31,  148  P.  90. 

Which  parent  had  the  care  of  a  minor  during  parents'  separation.  Alberty 
v.  Alberty  (Okl.)  180  P.  370. 

Plaintiff's  right  in  replevin  for  two  mules  claimed  under  a  chattel  mort- 
gage. Gerlach  Bank  of  Woodward  v.  Herd,  60  Okl.  186,  159  P.  901. 

The  question  of  actual  and  punitive  damages.  Edwards  v.  Warnkey,  66 
P.  987,  63  Kan.  889. 

WThile  malice  may  be  inferred  from  tne  intentional  use  of  a  deadly  w.eapon, 
the  weight  to  be  given  it  is  for  the  jury  considering  the  character  of  the  in- 
strument, the  manner  of  its  use,  and  attending  circumstances.  Eckerd  v. 
Weve,  118  P.  870,  85  Kan.  752,  38  L.  R.  A.  (N.  S.)  516. 

The  question  whether  it  was  intended  to  waive  the  limitation  of  time 
within  which  to  make  claim  for  damages  to  live  stock,  ot.  Louis  &  S.  F.  R. 
Co.  v.  James,  128  P.  279,  36  Okl.  196 ;  St.  Louis  &  S.  F.  R.  Co.  v.  Ladd,  124 
Pac.  461,  33  Okl.  160. 

Whether  there  was  an  implied  waiver  of  a  stipulation  limiting  the  time 
to  sue  under  a  live  stock  transportation  contract.  St.  Louis,  I.  M.  &  S.  Ry. 
Co.  v.  Patterson  (Okl.)  177  P.  898. 

The  reasonableness  of  a  provision  for  notice  to  carrier  of  injury  to  a  ship- 
ment of  cattle.  St.  Louis  &  S.  F.  R.  Co.  v.  Ladd,  124  P.  461,  33  Okl.  160. 

Whether  stock  when  received  by  the  carrier  was  in-bad  condition.  Wichita 
Falls  &  N.  W.  Ry.  Co.  v.,Benton  (Okl.)  167  P.  633.  * 

The  questions  of  what  is  a  reasonable  time  for  transportation  of  cattle  and 
the  sufficiency  of  the  excuse  for  the  delay.  Dickinson  v.  Seay  (Okl.)  175 
P.  216. 

Whether  a  carrier  of  an  intrastate  shipment  of  cattle  exercised  ordinary 
care  in  dipping  them.  Missouri,  K.  &  T.  Ry.  Co.  v.  Williamson  (Okl.)  180 
P.  961. 

The  question  of  the  defendant  carrier's  negligence  in  transporting  cattle. 
St.  Louis  &  S.  F.  R.  Co.  v.  Shepard,  139  P.  833,  40  Okl.  589. 

Whether  property  was  listed  with  an  agent,  and  whether  the  agent's  serv- 
ices were  the  procuring  cause  of  the  sale.  Harris  v.  Owenby,  58  Okl.  667, 
160  Pac.  596 ;  Chickasha  Inv.  Co.  v.  Phillips,  58  Okl.  760,  161  P.  223 ;  Yar- 
borough  v.  Richardson,  38  Okl.  11,  131  P.  680 ;  Eichoff  v.  Russell,  46  Okl.  512, 
149  P.  146. 

The  question  whether  brokers  had  acted  in  bad  faith.  Heath  v.  Chowning, 
142  P.  1108,  43  Okl.  274. 

The  questions  of  the  terms  on  which  property  was  listed  and  the  procuring 
cause  of  the  sale.  Schlegel  v.  Fuller,  48  Okl.  134,  149  P.  1118. 

Terms  of  a  sale.    Culbertson  v.  Mann,  30  Okl.  249,  120  P.  918. 

Whether  a  contract  for  the  sale  of  realty  making  time  of  payment  of  the 

(G85) 


§  805  TRIAL  (Ch.  13 

essence  was  forfeited,  or  performance  waived,  and  an  extension  of  time 
granted.  Livengood  v.  Ball,  63  Okl.  90,  162  P.  766. 

The  issue  of  the  lessor's  infancy.    Giles  v.  Latimer,  137  P.  113,  40  Okl.  301. 

Whether  goods  purchased  were  accepted.  Goldstandt-Powell  Hat  Co.  v. 
Cuff,  91  P.  862,  19  Okl.  243. 

Whether  representations  constituted  a  fraud  on  the  vendee.  Abmeyer  v. 
First  Nat.  Bank  of  Horton,  92  P.  1109,  76  Kan.  877. 

Whether  legal  services  were  authorized  by  defendant.  Turner  v.  Maxey, 
45  Okl.  125,  144  P.  1064. 

The  questions  of  undue  influence  and  testamentary  capacity.  Bilby  v. 
Stewart,  55  Okl.  767,  153  P.  1173. 

Whether  a  flood  was  so  unusual  as  to  amount  to  an  act  of  God.  Chicago, 
R.  I.  &  P.  Ry.  Co.  v.  McKone,  127  P.  488,  36  Okl.  41,  42  L.  R.  A.  (N.  S.)  709. 

Whether  the  complainant  was  guilty  of  laches  was  one  of  fact.  Osincup 
v.  Henthorn,  130  P.  652,  89  Kan.  58,  46  L.  R.  A.  (N.  S.)  174,  Ann.  Cas.  1914C, 
1262. 

Whether  a  new  promise  was  made  which  operated  to  renew  the  claim. 
Higgins  v.  Butler,  62  P.  810,  10  Okl.  345. 

Whether  an  officer  taking  an  acknowledgment  to  a  deed  is  financially  or 
beneficially  interested  in  the  transaction.  Hilsmeyer  v.  Blakej  125  P.  1129, 
34  Okl.  477. 

Whether  the  payee  of  a  note  assigned  by  him  with  guaranty  of  payment 
was  entitled  to  relief  because  of  the  holder's  negligence  in  forcing  collection 
on  the  assignor's  demand  while  the  makers  of  the  note  were  solvent.  Stetler 
v.  Boling,  52  Okl.  214,  152  P.  452. 

Whether  plaintiff  had  relinquished  his  parental  control  and  turned  over 
to  another  the  duty  of  support  and  education.  Shawnee-Tecumseh  Traction 
Co.  v.  Campbell,  53  Okl.  172,  155  P.  697. 

Whether  consent  to  an  operation  was  implied  from  the  circumstances. 
Rolater  v.  Strain,  137  P.  96,  39  Okl.  572,  50  L.  R.  A.  (N.  S.)  880. 

Whether  a  warehouseman  used  ordinary  care  in  protecting  meats  placed 
in  cold  storage.  Muskogee  Crystal  Ice  Co.  v.  Riley  Bros.,  108  P.  629,  24  Okl. 
114. 

Whether  a  person  who,  in  self-defense,  shot  at  an  assailant,  and,  missing 
him,  accidentally  wounded  a  bystander,  was  guilty  of  negligence.  Shaw  v. 
Lord,  137  P.  885,  41  Okl.  347,  50  L.  R.  A.  (N.  S.)  1069,  Ann.  Cas.  1916C,  1147. 

Whether  or  not  there  has  been  a  material  alteration  in  a  note  after  de- 
livery. Cavitt  v.  Robertson,  142  P.  299,  42  Okl.  619. 

Whether  a  fence  through  which  a  hog  broke  was  proof  against  all  except 
breachy  hogs,  and  whether  a  particular  hog  was  more  than  ordinarily 
breachy.  Sharrock  v.  Pryor,  128  P.  243,  36  Okl.  305. 

Whether  plaintiff  was  misinformed  or  misled  by  the  carrier's  servants  as 
to  the  regular  stopping  place  of  the  train  and  whether  he  was  thereby  in- 
duced to  believe  that  the  train  would  stop  at  his  destination.  Chicago,  R.  I. 
&  P.  Ry.  Co.  v.  Sheets,  54  Okl.  586,  154  P.  550. 

Whether  a  second  mortgage  constituted  payment  or  merely  renewal  of  a 
first  mortgage.  Ford  v.  Coweta  Hardware  Co.,  49  Okl.  523,  153  P.  865. 

Not  held  for  jury. — Where  contract  is  in  writing,  or  its  terms  are  undis- 
puted, though  resting  in  parol,  and  where  but  one  inference  can  be  drawn 
from  evidence,  court  must  determine  whether  relation  is  that  of  employer  and 

(686) 


Art.  3)  ISSUES   AND   TRIAL  THEREOF  §    805 

This  rule  has  been  applied  to  cases  wherein  are  presented  various 
defenses,14  such  as  fraud,15  bad  faith,  forgery,10  usury,17  insufficient 

independent  contractor,  or  master  and  servant.     Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Beasley  (Okl.)  168  P.  200. 

In  action  for  injuries  against  railroad  and  employe,  where  railroad,  if  lia- 
ble at  all,  is  liable  on  the  principle  of  respondeat  superior,  and  the  court 
directs  verdict  for  defendant  employe,  it  is  error  to  submit  issue  of  negli- 
gence of  railroad.  Kansas  City,  M.  &  O.  Ry.  Co.  v.  Leuch,  60  Okl.  19,  158 
P.  1146. 

i*  Under  evidence  authorizing  conflicting  inferences,  the.  question  whether 
the  parties  intended  that  acceptance  of  an  offer  to  sell  goods  should  be  made 
by  some  other  means  than  through  the  mail  was  for  the  jury.  Farmers'  Prod- 
uce Co.  v.  McAlester  Storage  &  Commission  Co.,  48  Okl.  488,  150  P.  483, 
L.  R.  A.  1916A,  1297 ;  Same  v.  Central  Fruit  &  Produce  Co.,  48  Okl.  754,  150 
P.  664. 

In  the  original  seller's  action  against  a  second  purchaser  who  had  assumed 
the  original  obligation  held  error  to  instruct  as  a  matter  of  law  that  de- 
fendant was  so  subrogated  to  the  original  purchaser's  right  on  a  warranty 
in  the  sale.  Walrus  Mfg.  Co.  v.  McMehen,  136  P.  772,  39  Okl.  667,  51  L.  R.  A. 
(N.  S.)  1111. 

Where,  in  an  action  to  recover  a  publicly  offered  prize,  plaintiff's  right  to 
recover  depends  upon  whether  the  prize  has  been  awarded  under  stated  con- 
ditions and  the  testimony  is  conflicting,  the  issue  is  for  the  jury.  Southwest- 
ern Land  Co.  v.  McCallam,  136  P.  1093,  41  Okl.  657. 

is  In  action  on  a  note  defended  on  ground  of  payee's  fraud  in  obtaining  it, 
question  whether  any  suspicious  facts  and  circumstances  amounted  to  bad 
faith,  though  the  holder  was  guilty  of  gross  negligence,  was  for  the  jury. 
Mangold  &  Glandt  Bank  v.  TJtterback  (Okl.)  174  P.  542. 

In  a  suit  on  an  insurance  policy,  evidence  held  insufficient  to  take  to  the 
jury  insured's  contention  that  a  compromise  agreement  was  not  binding  be- 
cause the  result  of  fraud,  or  not  his  free  act.  Pacific  Mut.  Life  Ins.  Co.  of 
California  v.  Coley,  62  Okl.  161,  162  P.  713. 

In  an  action  on  notes,  evidence  held  sufficient  to  take  the  case  to  the  jury 
on  the  question  whether  the  execution  of  the  notes  was  obtained  by  fraud. 
Gilpin  v.  Netograph  Mach.  Co.,  108  P.  382,  25  Okl.  408,  29  L.  R.  A.  (N.  S.) 
477 ;  Edwards  v.  Miller,  30  Okl.  442,  120  P.  996 ;  Jef ress  v.  Phillips,  31  Okl. 
202,  120  P.  916. 

Whether  a  sale  contract,  for  breach  of  which  the  action  was  brought,  was 
procured  by  fraud  without  having  been  read  by  defendant,  held  a  question 
for  the  jury.  George  O.  Richardson  Machinery  Co.  v.  Duncan,  46  Okl.  21, 
148  P.  80. 

Where  an  injured  person  has  been  given  eight  days  within  which  to  decide 
whether  he  would  accept  an  offer  of  settlement,  and  after  acceptance  he  re- 
is  Where  plaintiff  in  ejectment  claims  to  be  a  purchaser  in  good  faith  and 
there  is  evidence  from  which  bad  faith  may  reasonably  be  inferred,  such  as 
a  forgery  in  the  second  degree  under  Rev.  Laws  1910,  §  2646,  it  is  error  to 
sustain  a  demurrer  to  defendant's  evidence  and  take  the  case  from  the  jury. 
Baldridge  v.  Sunday  (Okl.)  176  P.  404. 

17  See  note  17  on  following  page. 

(687) 


§  805  TRIAL  (Ch.  13 

execution  of  a  written  instrument,18  accord  and  satisfaction,19  ac- 
ceptance, and  waiver.20  It  has  been  applied  to  such  issues  as  the 

ceives  its  benefits  for  several  months,  evidence  that  he  was  told  he  would 
be  stricken  from  the  pay  roll  unless  he  signed  the  settlement  is  insuflicient 
to  justify  the  submission  of  the  cause  to  the  jury  on  the  issue  of  fraud  in  the 
procurement  of  the  compromise.  Pioneer  Telephone  &  Telegraph  Co.  v.  Gri- 
der,  124  P.  949,  44  Okl.  206. 

17  Where  interest  reserved  by  note  and  mortgage  is  shown  by  their  terms 
to  be  within  the  legal  limit,  question  as  to  whether  amount  charged  borrower 
was  in  good  faith  claimed  as  a  commission  or  was  an  evasion  of  the  law 
against  usury  was  for  the  jury.  Tuttle  v.  F.  O.  Finerty  &  Co.  (Okl.)  171  P.  39. 

Whether  the  fact  that  a  note  for  a  loan  was  made  to  surety  on  borrower's 
note  and  by  indorsement  to  the  lending  bank  constituted  a  bona  fide  sale  of 
note  at  a  discount  to  the  bank,  or  was  a  device  by  which  bank  collected  usu- 
rious interest,  held  for  the  jury.  Bristow  v.  Central  State  Bank  (Okl.)  173 
P.  221. 

The  question  of  intent  in  usury  cases  is  a  question  of  fact  for  the  jury,  un- 
less it  clearly  appears  from  the  face  of  the  instrument  itself  that  usury  has 
been  charged.  Deming  Inv.  Co.  v.  Grigsby  (Okl.)  163  P.  530.  Borrower's  con- 
tract to  pay  all  future  taxes  assessed  against  all  interest  in  realty  owned  by 
him,  including  the  interest  granted  to  the  lender  by  virtue  of  mortgage,  was 
not  conclusively  an  usurious  contract.  Id. 

Whether  a  collateral  instrument  or  commissions  were  taken  and  reserved 
with  intent  to  charge  usury,  and  whether  the  transaction  was  a  device  to 
evade  the  law  against  usury,  held  to  be  a  question  of  fact,  where  the  prin- 
cipal instruments  were  valid  on  their  face.  Garland  v.  Union  Trust  Co.,  49 
Okl.  654,  154  P.  676. 

is  Under  conflicting  evidence  in  a  controversy  between  a  purchaser  and 
mortgagee,  held,  that  the  questions  whether  the  original  mortgage  bore  a  seal, 
no  seal  being  shown  by  the  mortgage  as  recorded,  and  whether  the  purchaser 
had  actual  knowledge  of  the  mortgage,  were  for  the  jury.  Rollow  v.  Frost 
&  Saddler,  54  Okl.  578,  154  P.  542. 

19  Where  accord  and  satisfaction  was  set  up  as  a  defense  held,  that  wheth- 
er there  was  a  meeting  of  minds  on  the  new  promise  and  whether  it  was 
intended  to  discharge  the  prior  obligation  necessary  to  such  defense  was  a 
question  of  fact.    Gentry  v.  Fife,  56  Okl.  1,  155  P.  246. 

Whether  a  note  of  a  debtor  taken  for  a  pre-existing  debt  extinguishes  the 
debt  is  a  question  of  fact  for  the  jury.  Ohio  Cultivator  Co.  v.  Dunkin  (Okl.) 
168  P.  1002. 

20  Mere  occupancy  and  use  of  a  building  by  an  owner  does  not,  as  a  matter 
of  law,  constitute  an  acceptance  and  waiver  of  nonperformance  by  the  con- 
tractor, or  ordinarily  justify  an  inference  of  acceptance.     Wiebener  v.  Peo- 
ples, 44  Okl.  32,  142  P.  1036,  Ann.  Gas.  1916E,  748.    Mere  part  payment  does 
not  as  a  matter  of  law  constitute  an  acceptance  of  the  work  of  constructing 
a  building,  and  a  waiver  of  nonperformance,  except,  perhaps,  to  the  extent  of 
such  payment  where  such  acceptance  and  waiver  is  consistent  with  all  the 
pertinent  facts.    Id. 

Waiver,  involving  intention  to  abandon  or  relinquish  a  right,  is  a  question 
for  the  jury.  American  Cent.  Ins.  Co.  of  St.  Louis,  Mo.,  v.  Sinclair,  61  Okl. 
17,  160  P.  60. 

(688) 


Art.  3)  ISSUES  AND   TRIAL   THEREOF  §    805 

reasonableness  of  a  contract  provision  for  notice,21  delivery  of  the 
contract  sued  on,22  abandonment  of  contract 23  and  of  contract 
rights,24  fraud  and  misrepresentation,25  abandonment  of  a  home- 
stead,20 good  faith,27  mutual  mistake,28  existence  of  facts  -essential 
to  a  valid  marriage,29  and  to  rights,  duties,  and  liabilities  as  be- 
tween carrier  and  passenger  under  the  circumstances  of  particular 

21  Whether  the  time  provided  by  a  contract  of  shipment  for  giving  notice 
to  the  railroad  company  of  injury  to  the  shipment  is  reasonable  is  a  question 
of  fact.    St.  Louis  &  S.  F.  R.  Co.  v.  Phillips,  87  P.  470,  17  Okl.  264. 

22  Where  the  pleadings  and  evidence  presented  an  issue  of  fact  whether  the 
contract  sued  on  was  delivered  on  a  condition  precedent  to  its  effectiveness, 
it  was  error  to  so  instruct  as  to  take  such  issue  from  the  jury.    Rutherford 
v.  Holbert,  142  P.  1099,  42  Okl.  735,  L.  R.  A.  1915B,  221. 

23  Whether  a  contract  is  abandoned  is  a  question  of  fact,  to  be  determined 
from  all  the  circumstances  of  the  particular  case.    Martin  v.  Spaulding,  -137 
P.  882,  40  Okl.  191. 

2*  Under  conflicting  evidence,  held,  that  whether  a  transaction  constituted 
a  relinquishment  by  the  buyer  of  his  contract  rights  or  an  oral  sale  of  the 
personal  property,  valued  at  $150,  back  to  the  seller,  which  would  be  void 
under  the  statute  of  frauds  (Rev.  Laws  1910,  §  941),  was  for  the  jury.  Elsing 
v.  Noah,  51  Okl.  558,  152  P.  101. 

25  in  action  for  fraud  and  deceit  by  which  value  of  corporate  stock  or 
plaintiff  was  destroyed,  where  there  was  evidence  of  promises  and  represen- 
tations by  defendants  on  which  he  relied  and  which  were  untrue,  peremptory 
instruction  for  defendants  was  error.     Harbison  v.  White,  56  Okl.  566,  156 
P.  335. 

26  Elliott  v.  Bond  (Okl.)  176  P.  242. 

The  issue  whether  or  not  a  homestead  has  been  abandoned  presents  a  ques- 
tion of  fact  for  the  jury.  Carter  v.  Pickett,  39  Okl.  144,  134  P.  440. 

Upon  issue  whether  or  not  a  homestead  has  been  abandoned,  the  main 
question  is  that  of  the  real  intent  of  homestead  claimant,  determination  of 
which  involves  a  question  of  fact.  Russell  v.  Roller  (Okl.)  174  P.  560;  Mc- 
Canimon  v.  Jenkins,  44  Okl.  612,  145  P.  1163. 

27  The  good  faith  and  genuineness  of  a  sale,  and  all  the  circumstances 
which  tend  to  exhibit  the  transaction  in  its  true  light,  are  for  the  jury,  who 
must  find  from  the  evidence  whether  the  sale  was  in  good  faith,  and  wheth- 
er there  was  a  sufficient  change  of  possession  as  against  the  seller's  creditors. 
Masters  v.  Teller,  56  P.  1067,  7  Okl.  668,  8  Okl.  271. 

2  s  Where  a  contracting  party  had  weak  eyes,  was  a  poor  reader,  and  was 
misled  by  a  statement  of  the  other  party,  whether  he  was  entitled  to  relief  for 
mutual  mistake  was  for  the  jury.  McDonald  v.  McKinney  Nursery  Co.,  44 
Okl.  62,  143  P.  191. 

29  Where,  in  an  action  to  recover  land,  the  issue  of  heirship  depended  upon 
the  validity  of  a  marriage,  the  existence  of  facts  essential  to  a  valid  marriage 
under  the  Creek  laws  and  whether  a  marriage  was  to  be  inferred  from  cohabi- 
tation and  reputation  were  questions,  for  the  jury.  Fender  v.  Segro,  137  P. 
103,  41  Okl.  318. 

HON.PL.&  PEAC.— 44  (689) 


§  805  TRIAL  (Ch.  13 

cases;30  also  as  between  carrier  and  shipper,81  rights  and  liabilities 

so  Where  one  who  had  been  carried  on  a  freight  train  for  less  than  full  fare 
was  informed  when  the  train  reached  a  station  that  he  could  be  carried  no 
further,  and  that  he  must  procure  .&  ticket,  held  that  the  question  whether 
he  was  a  passenger  in  going  to  the  station  #s  directed  was  for  the  jury- 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Shadid,  GO  Okl.  188,  159  P.  913. 

In  an  action  for  injuries  to  a  passenger,  evidence  held  sufficient  to  carry 
the  question  of  defendant's  negligence  to  the  jury.  St.  Louis  &  S.  F.  R.  Co.  v. 
Walker,  122  P.  492,  31  Okl.  494. 

Where  plaintiff's  evidence  in  a  passenger's  action  for  injuries  made  out  a 
prima  facie,  case,  the  court  properly  refused  to  take  the  case  from  the  jury, 
though  such  evidence  was  rebutted  by  that  of  the  carrier.  St.  Louis  &  S.  F. 
R,  Co.  v.  Pitts,  140  P.  144,  40  Okl.  685,  L.  R.  A.  1916O,  348. 

Derailment. — Whether  the  evidence  rebutted  the  presumption  of  the  car- 
rier's negligence,  arising  from  the  derailment  of  a  train,  held  a  question  for 
the  jury.  Midland  Valley  R.  Co.  v.  Hilliard,  46  Okl.  391,  148  P.  1001. 

Infirm  passenger. — Whether  passenger  comes,  within  excepted  class  so  as  to 
impose  duty  on  carrier  to  give  special  assistance  is  ordinarily  for  jury.  St. 
Louis  &  S.  F.  Ry.  Co.  v.  Dobyns,  57  Okl.  643,  157  P.  735. 

Whether  a  passenger,  by  reason  of  sickness,  age,  or  infirmity,  comes  within 
the  class  as  to  whom  carrier  owes  a  duty  to  assist  in  alighting  from  a  train, 
Is  for  the  jury.  Dickinson  v.  Tucker  (Okl.)  176  P.  949.  Carrier's  duty  to  assist 
sick,  aged,  or  infirm  passengers  to  alight  depends  upon  the  circumstances  of 
case;  but,  where  there  is  no  evidence  that  a  passenger  falls  within  such  ex- 
ception to  general  rule,  the  submission  of  carrier's  negligence  in  not  assisting 
him  to  alight  is  reversible  error.  Id. 

In  action  for  damages  for  wrongful  ejection  from  a  train,  held,  that  whether 
plaintiff,  by  reason  of  infirmity,  was,  in  exception  to  the  general  rule,  entitled 
to  personal  service  or  attention,  was  for  the  jury.  Dickinson  v.  Bryant  (Okl.) 
172  P.  432,  L.  R.  A.  1918E,  978. 

Injuries  vn>  alighting. — Evidence  in  a  passenger's  action  for  injuries,  re- 
ceived while  alighting  from  a  train  held  sufficient  to  warrant  submitting  to 
the  jury  whether  plaintiff's  injuries  were  caused  by  defendant's  negligence. 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Melson,  40  Okl.  1,  134  P.  388,  Ann.  Cas.  1915D, 
760. 

Where  plaintiff,  with  assurance  of  defendant's  conductor  that  he  will  have 
time  to  do  so,  goes  into  a  train  to  assist  his  wife  and  children  to  a  seat,  and 
the  train  starts,  and  he  attempts  to  get  off  at  the  vestibule  at  which  he  en- 
tered, but  the  door  is  closed  and  the  brakeman  directs  him  to  the  next  vesti- 
bule door,  and  in  getting  off  he  is  injured,  it  cannot  be  said  as  a  matter  of 
law  that  the  negligence  of  defendant  was  not  the  proximate  cause  of  his 
injury.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  McAlester,  39  Okl.  153,  134  P.  661. 

Whether  a  person  who  had  entered  a  train  to  assist  a  passenger  was  negll- 

si  Where  a  carrier  seeks  to  avoid  liability  on  account  of  a  snowstorm,  and 
the  evidence  is  conflicting  as  to  whether  the  carrier,  notwithstanding  the 
storm,  could  have  prevented  the  loss  by  ordinary  care,  the  court  should  re- 
fuse a  peremptory  instruction  for  defendant.  St.  Louis  &  S.  F.  Ry.  Co.  v. 
Dreyfus,  141  P.  773,  42-  Okl.  401,  L.  R.  A.  1915D,  547. 

(690) 


Art.  3)  ISSUES  AND  TRIAL  THEREOF  §    805 

as  between  the  insurer  and  the  insured,32  whether  a  promise  is  orig- 

gent  in  attempting  to  alight  from  the  train  while  it  was  moving  held  for  the 
jury.    St.  Louis  &  S.  F.  R.  Co.  v.  Isenberg,  48  Okl.  51,  150  P.  123. 

It  is  not  contributory  negligence  per  se  for  a  person  to  alight  from  a  moving 
street  car,  and  the  question  of  such  negligence  depends  on  the  speed,  the  plac?, 
and  other  circumstances.  Oklahoma  Ry.  Co.  v.  Boles,  30  OkJ.  764,  120  P.  1104. 

Evidence  held  sufficient  to  go  to  jury  on  question  of  whether  defendant 
railroad,  through  its  agents,  had  notice  that  deceased  entered  the  train  to  seat 
his  wife,  a  passenger.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Brooks  (Okl.)  179  P.  924. 
Evidence  held  sufficient  to  go  to  jury  on  question  of  carrier's  negligence  in 
suddenly  starting  train  without  allowing  reasonable  time  for  deceased  to 
procure  a  seat  for  his  wife,  a  passenger,  and  leave  train  in  safety.  Id. 

Place  of  waiting  and  riding. — In  an  action  by  a  passenger  for  injuries  claim- 
ed to  be  the  result  of  the  carrier's  failure  to  furnish  a  sufficient  waiting  room, 
the  question  whether  the  injuries  were  from  resulting  exposure  held  for  the 
jury.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Gilmore,  52  Okl.  296,  152  P.  1096. 

Whether  the  place  on  a  railway  station  platform,  where  an  implied  invitee 
was  injured  was  a  place  where  she  would  naturally  and  ordinarily  be  likely 
to  go  held  a  question  for  the  jury.  St.  Louis  &  S-  F.  R.  Co.  v.  Stacy,  77  Okl. 
165,  171  P.  870. 

That  a  negro  passenger  waiting  for  a  train  in  a  cold,  negro  waiting  room  de- 
clined to  accept  the  invitation  of  defendant's  station  agent  to  pass  through 
the  waiting  room  for  white  persons  and  sit  by  the  fire  in  his  office,  held  not  to 
render  her,  as  a  matter  of  law,  guilty  of  contributory  negligence,  which  was 
the  proximate  cause  of  her  suffering  from  cold.  St.  Louis,  I.  M.  &  S.  Ry.  Co. 
v.  Lewis,  136  P.  396,  39  Okl.  677. 

In  railway  mail  clerk's  action  for  personal  injury,  evidence  held  sufficient 
to  take  case  to  jury  on  question  of  defendant's  negligence  in  failing  to  fur- , 
nish  a  car  properly  heated,  in  consequence  of  which  clerk  contracted  a  severe 
cold  developing  into  facial  paralysis.  St.  Louis  &  S.  F.  R.  Co.  v.  McClain,  60 
Okl.  75,  162  P.  751.  In  railway's  mail  clerk's  action  for  personal  injury,  evi- 
dence held  to  take  case  to  jury  on  the  question  whether  defendant's  negligence 
was  proximate  cause  of  the  injury.  Id. 

A  passenger  on  a  box  car  who  places  himself  near  the  open  door  while 
the  train  is  slackening  speed  for  his  destination  cannot  recover  for  injuries  re- 
ceived by  being  thrown  out  of  the  car  by  the  stoppage  of  the  train.  Atchison. 
T.  &  S.  F.  R.  Co.  v.  Johnson,  41  P.  641,  3  Okl.  41. 

Under  the  statutes  it  was  not  negligence  per  se  for  a  passenger  on  a  mixed 
railroad  train  to  occupy  a  seat  in  a  baggage  car.  Lane  v.  Choctaw,  O.  &  G.  R. 
Co.,  91  P.  883,  19  Okl.  324. 

Whether  a  train  was  overcrowded  or  rules  posted  warning  passengers  not 
to  ride  in  baggage  cars  are  questions  for  the  jury  and  not  the  court.  Lane 
v.  Choctaw,  O.  &  G.  R.  Co.,  91  P.  883,  19  Okl.  324. 

s 2  Application  for  insurance. — The  intent  of  insured,  and  whether  certain 
answers  given  to  the  questions  in  the  application  were  false,  held  a  question 
of  fact.  Shawnee  Life  Ins.  Co.  v.  Watkins,  53  Okl.  188,  156  P.  181. 

In  an  action  on  an  insurance  policy,  where  a  false  and  fraudulent  misrep- 
resentation is  alleged  and  the  evidence  is  conflicting,  the  question  is  for  the 
jury.  Springfield  Fire  &  Marine  Ins.  Co.  v.  Null,  133  P.  235,  37  Okl.  665. 

The  questions  of  the  falsity  of  statements  contained  in  an  insurance  policy 

(691) 


§  805  TRIAL  (Ch.  13 

inal  or  collateral,33  loss  of  earning  capacity,34  extent  of  injury,35 

and  of  the  applicant's  intent  in  making  them  are  ordinarily  for  the  jury.  Con- 
tinental Casualty  Co.  v.  Owen,  38  Okl.  107,  131  P.  1084.  Under  the  evidence 
in  an  action  on  an  accident  insurance  policy,  held  a  question  for  the  jury 
whether  insured  was  suffering  from  a  "defect  in  the  body,"  within  the  mean- 
ing of  that  phrase  in  his  statement  indorsed  on  the  policy.  Id. 

The  truth  of  warranties  in  an  application  for  insurance  held  for  the  jury 
under  conflicting  evidence.  National  Council,  Knights  and  Ladies  of  Security, 
v.  Owen,  47  Okl.  -±64,  149  P.  231. 

A  representation  in  a  fire  policy  if  false  and  material  avoids  the  policy, 
though  the  question  of  falsity  and  materiality  is  ordinarily  for  the  jury. 
Orient  Ins.  Co.  v.  Van  Zandt-Bruce  Drug  Co.,  50  Okl.  558,  151  P.  323. 

In  action  upon  life  policy  defended  on  ground  that  insured's  statements 
were  false,  the  materiality  of  such  statements  and  the  insured's  intent  to  de- 
ceive are  questions  for  the  jury.  American  Bankers'  Ins.  Co.  v.  Hopkins  (Okl.) 
169  P.  489. 

Whether  a  statement  of  insured,  in  an  application  for  a  life  policy  warrant- 
ed to  be  true,  is  untrue  is  ordinarily  a  question  for  the  trier  of  facts.  Na- 
tional Union  v.  Kelley,  140  P.  1157,  42  Okl.  98. 

In  action  on  benefit  certificate,  truth  or  falsity  of  warranties  in  application 
is  for  the  jury,  where  the  evidence  conflicts.  National  Council  Knights  and 
Ladies  of  Security  v.  Owen,  61  Okl.  256,  161  P.  178. 

Proof  of  loss. — Whether  a  statement  made  in  the  proof  of  loss  was  material, 
false  to  assured's  knowledge,  and  willfully  made  with  intent  to  deceive,  held 
for  the  Jury.  Royal  Ins.  Co.  Limited  v.  Scritchfield,  51  Okl.  523,  152  P.  97. 

Life  insurance. — The  good  faith  of  insured,  a  bank  cashier,  in  issuing  a 
draft  for  his  premium  held  a  question  for  the  jury.  Mutual  Life  Ins.  Co.  v. 
Chattanooga  Savings  Bank,  47  Okl.  748,  150  P.  190,  L.  R.  A.  1916A,  669. 

Evidence  in  an  action  on  a  life  policy,  held  to  require  submission  to  the 

33  The  question  whether  a  verbal  promise  to  repay  borrowed  money  is  origi- 
nal or  collateral  is  for  the  jury.  Waldock  v.  First  Nat.  Bank  of  Idabel,  143 
P.  53,  43  Okl.  348.  Under  the  evidence,  held  that  the  question  whether  W.'s 
promise  to  repay  money  advanced  to  R.  was  an  original  or  collateral  promise 
was  for  the  jury.  Id. 

Evidence  held  to  present  a  question  of  fact  whether  a  promise  to  pay  for 
advancements  to  be  made  to  another  was  primary  or  collateral.  Richardson 
v.  Parker,  McConnel  &  Co.,  125  P.  442,  33  Okl.  339. 

s*  Proof  of  loss  of  earning  capacity  need  not  be  wholly  clear  to  go  to  the 
jury.  Muskogee  Electric  Traction  Co.  v.  Eaton,  49  Okl.  344,  152  P.  1109. 

ss  in  an  injury  action,  where  nonexpert  witnesses  testified  that  the  injury 
was  permanent,  and  plaintiff's  injured  hand  was  exhibited  to  the  jury  in 
corroboration  thereof,  and  several  expert  witnesses  testified  that  the  injury 
was  slight,  and  that  there  was  a  complete  recovery,  the  extent  of  the  injury 
was  a  question  for  the  jury.  Coalgate  Co.  v.  Bross,  107  P.  425,  25  Okl.  244, 
138  Am.  St.  Rep.  915. 

Evidence  in  a  passenger's  action  for  injuries  held  insufficient  to  warrant 
submitting  to  the  jury,  as  elements  of  plaintiff's  damages,  whether  she  suffer- 
ed from  kidney  disease  and  paralysis  as  a  result  of  her  injuries;  and  hence  in- 
structions withdrawing  these  elements  from  the  jury  were  improperly  refused. 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Melson,  40  Okl.  1,  134  P.  388,  Ann.  Cas  1915D 
760. 

(692) 


Art.  3)  ISSUES  AND   TRIAL  THEREOF  §    805 

amount  of  damages,36  rights  and  liabilities  as  between  employer 
and  employe,37  or  heirs,  representatives,  and  next  of  kin  of  the  em- 
ploye,38 and  the  proximate  cause  of  injury.89 

jury  of  the  question  whether  insured  was  in  such  mental  condition  as  to  be 
incapable  of  agreeing  to  cancellation  of  policy.  Jones  v.  New  York  Life 
Ins.  Co.,  122  If.  702,  32  Okl.  339. 

Submission  of  question  as  to  whether  local  council  had  waived  conditions  of 
contract,  notwithstanding  court  predicated  ,its  authority  on  wrong  section  of 
by-laws,  was  not  error,  especially  where  result  would  have  been  same.  Na- 
tional Council  of  Knights  and  Ladies  of  Security  v.  Fowler  (Okl.)  168  P.  914, 
6  A.  L.  R.  591. 

In  an  action  for  death  benefit,  where  there  was  conflicting  evidence  as  to 
Issue  whether  insured  was  in  good  health  when  reinstated,  case  was  properly 
submitted  to  tne  jury.  Modern  Brotherhood  of  America  v.  Beshara,  59  .Okl. 
187,  158  P.  613. 

Fire  insurance. — What  constitutes  a  reasonable  time  within  which  a  demand 
must  be  made  to  entitle  the  insured  to  appraise  and  inspect  is  ordinarily  for 
the  jury.  Springfield  Fire  &  Marine  Ins.  Co.  v.  Hays  &  Son,  57  Okl.  266,  156  P- 
673,  L.  R.  A.  1917A,  1078. 

Evidence  held  sufficient  to  take  to  the  jury  the  question  whether  insured 
complied  with  a  "book  warranty  clause"  of  the  policy.  Scottish  Union  &  Na- 
tional Ins.  Co.  v.  Moore  Mill  &  Gin  Co.,  143  P.  12,  43  Okl.  370. 

In  an  action  on  an  insurance  policy,  evidence  held  sufficient  to  take  to  the 
jury  the  question  of  waiver  of  the  iron-safe  clause  of  the  policy.  Gish  v.  In- 
surance Co.  of  North  America,  87  P.  869,  16  Okl.  59,  13  L.  R.  A.  (N.  S.)  826. 

Accident  insurance. — In  an  action  on  an  accident  policy  exempting  the  in- 
surer from  liability  for  injury  resulting  from  unnecessary  exposure  to  dan- 
ger, where  the  facts  are  such  that  reasonable  men  may  fairly  differ  upon  the 
question  as  to  whether  insured  died  of  injuries  resulting  from  such  cause,  the 
question  is  for  the  jury.  Pacific  Mut.  Life  Ins.  Co.  v.  Adams,  112  P.  1026,  27 
Okl.  496. 

Burglary  insurance. — Evidence,  in  an  action  on  a  policy  against  burglary  of 
a  safe  by  the  use  of  tools  or  explosives,  held  to  authorize  submitting  to  the 
jury  the  question  whether  the  safe  was  opened  by  such  means.  Fidelity  & 
Casualty  Co.  of  New  York  v.  First  Bank  of  Fallis,  142  P.  312,  42  Okl.  662. 

s  e  The  amount  of  damages  recoverable  in  an  action  for  wrongful  death  is 
a  question  for  the  jury.  Missouri,  K.  &  T.  Ry.  Co.  v.  West,  38  Okl.  581,  134 
P.  655. 

Where  it  is  apparent  that  there  was  some  loss  of  profits  by  breach  of  war- 
ranty of  fitness  of  article  for  particular  purpose,  it  is  for  the  jury  to 
determine  what  the  loss  probably  was.  Bishop-Babcock-Becker  Co.  v.  Estes 
Drug  Co.,  63  Okl.  117,  163  P.  276. 

37  Where,  in  an  employe's  action  for  injuries,  reasonable  men  might  fairly 
differ  as  to  whether  defendant's  negligence  was  shown,  the  court  properly  re- 
fused to  direct  a  verdict  for  defendant.  Frisco  Lumber  Co.  v.  Thomas,  142  P. 
310,  42  Okl.  670. 

Whether  a  master  has  been  negligent  is  ordinarily  for  the  jury.  Interstate 
Compress  Co.  v.  Arthur,  53  Okl.  212,  155  P.  861.  Where  the  standard  of  the 

88-38  see  notes  38  and  39  on  pages  696  to  698. 

(693) 


§  805  TRIAL  (Ch.  13 

master's  duty  Is  not  fixed,  but  variable  with  the  circumstances  and  incapable 
of  being  determined  as  a  matter  of  law,  the  question  whether  such  duty  has 
been  complied  with  must,  if  authorized  by  the  evidence,  be  submitted  to  the 
jury.  The  question  of  the  master's  negligence  becomes  one  of  law  only,  where 
the  facts  are  such  that  all  reasonable  men  must  draw  the  same  conclusions, 
and  then  only  when  no  recovery  can  be  had  on  any  view  of  the  facts  which 
the  evidence  tends  to  establish.  Id. 

In  servant's  action  for  injury,  where  facts  are  such  that  reasonable  men 
may  fairly  differ  as  to  defendant's  primary  negligence,  question  is  for  the 
jury.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Pruitt  (Okl.)  170  P.  1143;  Missouri,  O.  & 
G.  Ry.  Co.  v.  West,  50  Okl.  521,  151  P.  212. 

Evidence  in  a  railroad  employe's  action  for  injuries  received  in  interstate 
commerce  held  to  authorize  the  overruling  of  defendant's  demurrer  to  the 
evidence  and  denial  of  his  motion  for  a  directed  verdict.  St.  Louis  &  S.  F.  R. 
Co.  v.  Brown,  45  Okl.  143,  144  P.  1075. 

In  servant's  action,  question  of  master's  negligence  held  for  jury.  Sulzberger 
&  Sons  Co.  of  Oklahoma  v.  Strickland,  60  Okl.  158,  159  P.  833. 

In  action  by  servant  for  personal  injuries,  evidence  held  sufficient  to  go  to 
jury  on  question  of  defendant's  negligence.  Chicago,  R.  I.  &  P.  Ry.  Co.  v. 
Mayfield,  63  Okl.  71,  162  P.  486. 

In  a  mine  employe's  action  for  injuries  from  the  derailment  of  a  coal  car 
the  question  whether  the  engineer  was  negligent  was  for  the  jury.  Great 
Western  Coal  &  Coke  Co.  v.  Malone,  136  P.  403,  39  Okl.  693. 

Under  the  evidence  in  an  engineer's  action  for  injuries  to  his  eye  from  the 
explosion  of  an  inadequate  water  glass  which  the  fireman  was  attempting  to 
put  in  place,  held,  that  the  question  of  the  negligence  of  the  master  and  of  the 
fireman  was'  for  the  jury.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  De  Vore,  143  P.  864, 
43  Okl.  534,  L.  R.  A.  1915F,  21. 

In  an  employe's  action  for  injuries  received  while  fixing  a  coupler,  defend- 
ant's negligence  held  for  the  jury.  St.  Louis  &  S.  F.  R.  Co.  v.  Brown,  45  Okl. 
143,  144  P.  1075. 

Whether  defendant's  engineer  was  negligent  under  the  doctrine  of  discov- 
ered peril,  held  for  the  jury.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  pond,  47  Okl.  161, 
148  P.  103.  Whether  the  engineer,  in  violation  of  the  Federal  Safety  Ap- 
pliance Act  of  March  2,  1893,  as  amended  by  acts  approved  April  1,  1896,  and 
March  2,  1903  (U.  S.  Comp.  St.  §§  8605-8615),  failed  to  use  a  continuous  power 
brake  with  which  the  train  was  equipped,  held  for  the  jury.  Id. 

In  action  for  injuries  to  employg,  evidence  held  to  present  a  question  for 
the  jury  whether  defendant  was  guilty  of  negligence.  Enid  City  Ry.  Co.  v. 
Webber,  121  P.  235,  32  Okl.  180,  Ann.  Cas.  1914A,  569. 

Whether  a  master  was  negligent  in  the  purchasing  and  furnishing  of  lubri- 
cating oil  for  use  of  miners  in  a  coal  mine  is  primarily  one  of  fact  for  the 
jury.  Hailey-Ola  Coal  Co.  v.  Parker,  122  P.  632,  32  Okl.  642,  40  L.  R.  A.  (N. 
S.)  1120. 

Where  the  negligence  complained  of  is  failure  to  furnish  sufficient  assistants 
to  enable  plaintiif  to  perform  his  work,  the  question  is  for  the  jury  where 
there  is  any  evidence  that  defendant  failed  to  perform  such  duty,  and  that  such 
failure  pi-oduced  the  injury,  and  could  have  been  reasonably  anticipated. 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Ashlock,  129  P.  726,  36  Okl.  706. 

Whether  the  master  is  negligent  in  failure  to  see  that  fellow  servant's  previ- 
ous experience  qualifies  him  for  duties  to  which  he  is  assigned  is  for  the  jury. 
E.  Van  Winkle  Gin  &  Machine  Works  v.  Brooks,  53  Okl.  411,  156  P.  115L' 

(694) 


Art.  3)  ISSUES   AND   TRIAL  THEREOF  §    805 

Evidence  held  to  take  to  jury  question  whether  master  failed  to  'exercise  rea- 
sonable care  to  provide  plaintiff  safe  fellow  servants.     Id. 

Whether  an  employe's  injury  is  due  to  negligence  of  the  employer  in  failing 
to  furnish  competent  fellow  servants  sufficient  in  number,  or  to  some  other 
cause,  is  for  the  jury,  where  there  is  any  evidence  tending  to  support  such 
cause  of  action.  Sulzberger  &  Sons  Co.  v.  Hoover,  46  Okl.  792,  149  P.  887. 

Whether  an  employer  has  made  reasonable  investigation  into  the  character, 
skill,  and  qualifications  of  a  servant  is  a  question  of  fact  for  the  jury.  Ardmore 
Oil  &  Milling  Co.  v.  Robinson,  116  P.  191,  29  Okl.  79. 

Existence  and  nature  of  relationship. — In  servant's  action  for  injury,  evi- 
dence held  sufficient  to  justify  court  in  submitting  issue  of  relationship  to  jury. 
Wolverine  Oil  Co.  v.  Kingsbury  (Okl.)  168  P.  1021. 

In  an  action  for  injuries,  held  that,  whether  the  relation  of  master  and  serv- 
ant existed  between  plaintiff  and  defendant  was  for  the  jury.  Muskogee  Elec- 
tric Traction  Co.  v.  Cox,  49  Okl.  365,  153  P.  125. 

Under  conflicting  evidence,  the  question  whether  an  injured  employ^  is 
protected  by  the  federal  Employers'  Liability  Act  (U.  S.  Comp.  $t.  §§  8657- 
8665)  or  by  local  law  may  be  for  the  jury.  Chicago,  R.  I.  &  P.  R.  Co.  v.  Feld- 
er,  56  Okl.  220,  155  P.  529. 

Scope  and  nature  of  employment. — In  servant's  action  for  injury,  issues  as 
to  nature  of  his  employment  and  extent  of  his  duty  and  authority  held  to 
present  questions  of  fact  for  jury.  Sandals  v.  Mizpah-  Mining  Co.  (Okl.)»  168 
P.  808. 

In  an  action  for  the  death  of  a  servant  killed  while  employed  by  an  elec- 
tric company  in  locating  "trouble"  on  electric  wires,  evidence  held  sufficient  to 
to  go  to  the  jury.  Fisher  v.  Prairie,  109  P.  514,  26  Okl.  337. 

In  an  action  by  a  servant  for  injuries  from  a  defective  electric  wire  pole  ob- 
tained secondhand  from  another  company  by  plaintiff's  foreman,  evidence  held 
sufficient  to  go  to  a  jury  on  the  question  whether  the  foreman  was  acting 
within  his  authority  in  obtaining  the  pole  and  giving  it  to  the  members  of 
his  gang.  Choctaw  Electric  Co.  v.  Clark,  114  P.  730,  28  Okl.  399. 

Safe  place  and  appliances. — Under  conflicting  evidence,  the  question  wheth- 
er an  employer  has  negligently  failed  to  furnish  a  reasonably  safe  place  in 
which  to  work  is  for  the  jury.  Producers'  Oil  Co.  v.  Eaton,  44  Okl.  55,  143  P 
9;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Townes,  143  P.  680,  43  Okl.  568. 

In  action  for  damages  proximately  resulting  from  master's  failure  to  prop- 
erly safeguard  machinery,  as  required  by  Rev.  Laws  1910,  §  3746,  where 
such  failure  is  specifically  denied,  the  question  of  the  master's  negligence  is 
for  the  jury.  Maxia  v.  Oklahoma  Portland  Cement  Co.  (Okl.)  176  P.  907. 

In  an  action  for  injuries  to  an  employe  in  a  mine,  where  the  evidence  tend- 
ed to  show  that  timberman,  before  dislodging  loose  rock  from  the  roof  of  the 
mine,  warned  plaintiff,  but  did  not  give  him  sufficient  time  to  reach  a  point  of 
safety,  a  demurrer  to  the  evidence  held  properly  overruled.  Creek  Coal  Min- 
ing Co.  v.  Paprotta  (Okl.)  175  P.  235. 

In  brakeman's  action  for  injury  from  master's  alleged  negligence  in  fur- 
nishing a  brake  wheel  too  small,  and  in  having  the  brake  set  too  tight,  evi- 
dence held  insufficient  to  go  to  the  jury.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Hes- 
senflow  (OkL)  170  P.  1161. 

Where  the  evidence  in  an  employe's  action  for  injuries  showed  a  flagrant 
violation  of  the  Factory  Act,  the  court  properly  refused  to  direct  a  verdict  for 
defendant.  Pioneer  Hardwood  Co.  v.  Thompson,  49  Okl.  502,  153  P.  137. 

Evidence  in  an  employe's  action  for  injuries  from  negligent  failure  of  de- 

(695) 


§  805  TRIAL  (Ch.  13 

fendant  to  comply  with  the  Factory  Act  held  to  authorize  submitting  the 
cause  to  the  jury  on  plaintiff's  theory.  Planters'  Cotton  &  Ginning  Co.  v. 
Penny,  53  Okl.  136,  155  P.  516. 

In  absence  of  rule  or  recognition  requiring  use  of  longer  route,  question 
whether  continued  use  of  route  across  elevator  implied  notice  on  part  of 
master  and  consent  thereto  is  for  jury,  though  master  would  then  owe  duty  of 
making  passage  safe  by  lighting.  Prickett  v.  Sulzberger  &  Sons  Co.,  57  Okl. 
567,  157  P.  356. 

Whether  maintenance  by  railway  of  temporary  water  plug  or  other  ob- 
struction near  track,  endangering  operatives  in  their  usual  and  necessary  du- 
ties, is  negligence,  is  for  the  jury.  Midland  Valley  R.  Co.  v.  Ogden,  60  Okl. 
74,  159  P.  256. 

In  action  by  railroad  employe1  claimed  to  have  resulted  from  defective 
brake,  evidence  held  sufficient  to  take  to  jury  question  of  primary  negligence 
of  defendant.  Lusk  v.  White,  58  Okl.  773,  161  P.  541. 

Whether  defendant  had  failed  to  furnish  an  injured  servant  a  reasonably 
safe  place  in  which  to  work  held  for  the  jury.  Oklahoma  Portland  Cement 
Co.  v.  Brown,  45  Okl.  476,  146  P.  6.  The  character  of  the  work  held  not  so 
complex  as  to  require  the  master  to  prescribe  rules  and  regulations,  as  a  mat- 
ter of  law.  Id. 

Whether  a  spreader  was  such  a  guard  for  a  circular  saw  as  is  required  by 
ReV.  Laws  1910,  §  3746,  held  for  the  jury.  Jones  v.  Oklahoma  Planing  Mill 
&  Mfg.  Co.,  47  Okl.  477,  147  P.  999. 

Plaintiff,  an  employe"  of  defendant  railway  company,  was  engaged  under 
the  supervision  of  defendant's  foreman  to  load  loose  dirt  into  cars  of  defend- 
ant at  the  bottom  of  an  embankment  on  its  line  of  railway.  The  embankment 
was  from  10  to  14  feet  high,  and  sloped  from  the  top  outward  toward  the 
track  to  the  bottom  at  an  angle  of  about  45  degrees-  On  the  day  preceding  the 
accident  employe's  of  the  company,  under  the  direction  of  the  same  foreman, 
had  gone  on  top  of  the  embankment,  and  with  line  bars  and  picks  had  dug 
six  or  seven  holes  three  or  four  feet  deep,  about  two  and  a  half  to  three  feet 
back  from  the  edge  of  the  embankment,  and  had  cut  the  roots  of  a  tree 
standing  thereon  which  extended  out  through  the  top  dirt  of  the  bank,  hold- 
ing it  in  place.  Plaintiff  had  never  worked  at  this  place  before  the  day  of  the 
accident,  and  had  worked  there  only  a  few  hours  on  said  day  before  the  ac- 
cident occurred.  The  evidence  tended  to  show  that  he  had  no  knowledge  of 
such  acts  of  tne  employe's  on  the  day  previous,  or  of  the  condition  of  the 
embankment  resulting  therefrom,  and  that  the  same  were  not  obvious  to  him 
upon  ordinary  observation,  and  he  was  not  informed  thereof  by  defendant. 
Plaintiff  was  injured  by  the  sliding  of  the  top  dirt  of  the  embankment  down 
upon  him  and  breaking  his  leg.  Held,  that  the  court  did  not  err  in  submit- 
ting to  the  jury  the  question  whether  plaintiff's  injury  resulted  from  the  neg- 
ligence of  defendant.  Ft.  Smith  &  W.  R.  Co.  v.  Ketis,  110  P.  661,  26  Okl.  696. 

In  an  injury  action  by  a  servant  evidence  of  the  master's  neglect  in  failing 
to  provide  a  reasonably  safe  appliance  for  performance  of  the  work  required 
of  the  servant  held  insufficient  to  go  to  the  jury.  Solts  v.  Southwestern  Cot- 
ton Oil  Co.,  115  P.  776,  28  Okl.  706. 

as  in  action  for  damages  for  death  of  employe"  from  defendant's  negligence, 
held,  that  demurrer  to  plaintiff's  evidence  was  properly  overruled,  and  that 
defendant's  request  for  peremptory  instructions  was  properly  denied.  Lusk 
v.  Phelps  (Okl.)  175  P.  756. 

In  action  for  death  of  oil  company's  servant  by  gas  asphyxiation  held,  on 

(696) 


Art.  3)  ISSUES   AND   TRIAL   THEREOF  §    805 

the  evidence,  that  court  could  not  say  that  master's  culpability  might  not  be 
reasonably  inferred  by  jury,  where  servant  had  received  no  special  warning 
as  to  particular  dangers,  wbeu  circumstances  made  such  information  neces- 
sary to  enable  him  to  comprehend  dangers.  Silurian  Oil  Co.  v.  Morrell  (Okl.) 
176  P.  964. 

In  action  for  the  death  of  section  foreman  killed  while  removing  his  motor- 
car from  the  track,  evidence  held  sufficient  to  go  to  the  jury  on  the  question  of 
the  primary  negligence  of  the  railroad  company.  Dickinson  v.^Granbery  (Okl.) 
174  P.  776. 

In  action  for  death  of  a  brakeman,  held  on  the  evidence,  that  the  negli- 
gence of  defendant,  an  interstate  carrier,  in  failing  to  equip  freight  cars  with 
automatic  couplings  as  required  by  Federal  Safety  Appliance  Act  March  2, 
1893  (U.  S.  Comp.  St.  §§  8605-8612)  was  for  the  jury.  Chicago,  R.  I.  &  P.  Ry. 
Co.  v.  Ray  (Okl.)  168  P.  999. 

,  In,  an  action  based  on  the  Federal  Employers'  Liability  Act  (U.  S.  Cornp.  St. 
§§  8657-8665)  and  violation  of  the  Safety  Appliance  Act  of  March  2,  1893,  as 
amended  by  Acts  approved  April  1,  1896,  and  March  2,  1903  (U.  S.  Comp.  St. 
§§  860&-8615)  held  that  whether  deceased  was  an  independent  contractor  was 
for  the  court.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Bond,  47  Okl.  161,  148  P.  103.  Un- 
der the  evidence  in  an  action  based  on  jthe  Federal  Employers'  Liability  Act. 
held,  that  whether  deceased  was  killed  while  engaged  in  interstate  commerce 
was  for  the  jury.  Id. 

In  an  action  for  the  death  of  a  miner  killed  by  a  lump  of  coal  falling  down  a 
shaft,  the  question  of  defendant's  negligence  held  for  the  jury.  Osage  Coa> 
&  Mining  Co.  v.  Miozrany,  143  P.  185,  43  Okl.  453.  Whether  defendant  was 
negligent  in  failing  to  furnish  an  appliance  for  the  protection  of  a  miner  from 
coal  falling  down  a  shaft,  held  for  the  jury.  Id. 

Where,  in  an  action  for  the  death  of  an  employe"  from  a  freight  elevator 
accident,  there  was  evidence  reasonably  tending  to  prove  that  the  accident 
was  due  to  negligent  construction  of  the  elevator  track,  and  that  defendant's 
rule,  prohibiting  persons  riding  on  the  elevator  except  at  their  own  risk,  had 
been  abandoned,  the  question  of  the  cause  of  the  injury  was  for  the  jury. 
Selden-Breck  Const.  Co.  v.  Linnett,  38  Okl.  704,  134  P.  956. 

Where,  in  an  action  for  the  death  of  an  employe  from  a  freight  elevator 
accident  there  was  evidence  reasonably  tending  to  prove  that  the  accident 
was  due  to  negligent  construction  of  the  elevator  track,  and  that  defendant's 
rule,  prohibiting  persons  riding  on  the  elevator  except  at  their  own  risk,  had 
been  abandoned,  the  question  of  defendant's  negligence  was  for  the  jury. 
Selden-Breck  Const.  Co.  v.  Linnett,  38  Okl.  704,  134  P.  956. 

Where  an  employe"  is  killed,  the  jury  may  infer,  from  proof  of  the  manner 
of  the  occurrence  and  its  surroundings,  the  cause  of  the  accident,  provided  the 
inference  is  a  reasonable  one.  St.  Louis  &  S.  F.  Ry.  Co.  v.  Clampitt,  55  Okl. 
686,  154  P.  40.  Under  the  evidence,  in  an  action  for  the  death  of  a  brake- 
man killed  by  falling  under  a  moving  train,  held  that  whether  the  accident 
was  caused  by  a  defective  platform  was  for  the  jury,  though  there  was  no  di- 
rect evidence  that  such  defect  caused  Iris  fall.  Id. 

Evidence,  in  action  for  wrongful  death  of  mine  driver  in  defendant's  em- 
ploy, held  to  make  defendant's  negligence  a  question  for  the  jury.  Folsom- 
Morris  Coal  Mining  Co.  v.  Dillon  (Okl.)  162  P.  696. 

39  The  proximate  cause  of  an  injury  is  ordinarily  a  question  for  the  jury. 
St.  Louis  &  S.  F.  R.  Co.  v.  Davis,  132  P.  337,  37  Okl.  340. 

Where,  in  an  employe's  action  for  injuries,  defendant's  negligence  was  ad- 

(097) 


§  805  TRIAL  (Ch.  13 

Where  the  construction  of  a  contract  is  a  mixed  question  of  law 
and  fact,  it  is  for  the  jury.40  But  the  court  should  determine  the 

mitted,  the  question  of  plaintiff's  contributory  negligence  was  for  the  jury 
under  Const,  art.  23,  §  6.  Revel  v.  Pruitt,  142  P.  1019,  42  Okl.  696. 

What  was  the  proximate  cause  of  a  servant's  death  is  for  the  jury.  Coal- 
gate  Co.  v.  Hurst,  107  P.  657,  25  Okl.  588,  writ  of  error  dismissed  32  S.  Ct. 
838,  225  U.  S.  697,  56  L.  Ed.  1262. 

Whether  failure  of  employer  to  comply  with  positive  statute  relating  to 
safety  of  employs  was  proximate  cause  of  injury  is  question  for  jury  Har- 
riss-Irby  Cotton  Co.  v.  Duncan,  57  Okl.  761,  157  P.  746. 

In  action  by  railroad  employ^,  claimed  to  have  resulted  from  defective 
brake,  evidence  held  sufficient  to  take  to  jury  question  whether  defendant's 
negligence  was  the  proximate  cause  of  the  injury-  Lusk  v.  White,  58  Okl. 
773,  161  P.  541. 

Evidence  in  an  employe's  action  for  injury  held  to  warrant  submission  of 
the  question  of  defendant's  negligence.  Missouri,  O.  &  G.  Ry.  Co.  v.  Miller,  45 
Okl.  173,  145  P.  367.  Under  the  evidence  in  an  action  for  injuries  from  slipping 
on  a  pile  of  coal  and  falling  under  a  train,  held,  that  the  question  of  the  proxi- 
mate cause  was  for  the  jury.  Id. 

In  suit  for  personal  injuries,  question  whether  defendant's  negligence  is 
proximate  cause  of  injury  should  be  left  to  jury  where  evidence  is  conflicting, 
or  men  of  ordinary  intelligence  might  differ  as  to  its  effect.  Clinton  &  O.  W. 
Ry.  Co.  v.  Dunlap,  56  Okl.  755,  156  P.  654. 

The  question  of  whether  or  not  defendant's  negligence  was  the  proximate 
cause  of  plaintiff's  injury  is  for  the  jury,  where  the  evidence  is  conflicting. 
St.  Louis  &  S.  F.  R.  Co.  v.  Darnell,  141  P.  785,  42  Okl.  394. 

What  constitutes  want  of  ordinary  care  on  the  part  of  a  plaintiff,  and 
whether  the  same  is  the  proximate  cause  of  the  injury,  are  questions  for  the 
jury.  St.  Louis  &  S.  F.  R.  Co.  v.  Elsing,  132  P.  483,  37  Okl.  333. 

The  question  of  what  is  the  proximate  cause  of  an  injury,  or  what  is  the 
immediate  or  proximate  result  of  a  given  act,  is  ordinarily  one  of  fact  for 
the  jury.  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  St.  Louis  &  S.  F.  Ry.  Co.,  41  Okl. 
80,  135  P.  353,  48  L.  R.  A.  (N.  S.)  509. 

In  action  for  personal  injury  in  crossing  accident,  evidence  held  sufficient 
to  carry  case  to  jury  upon  question  whether  defendant's  negligence  was  the 
proximate  cause  of  injury.  Ft.  Smith  &  W.  Ry.  Co.  v.  Hutchinson  (Okl.)  175  P. 
922.  In  action  for  personal  injury,  the  submission  of  question,  whether  in- 
jury resulted  from  plaintiffs  act  in  jumping  from  wagon,  was  not  error, 
where  there  was  evidence  from  which  jury  might  have  found  that  she  at- 
tempted to  jump  from  wagon,  though  she  did  not  jump  clear  but  fell  and  had 
to  be  helped  to  ground.  Id. 

In  an  action  for  injuries  to  a  child,  from  the  negligent  operation  of  a  train, 
held,  that  the  proximate  cause  of  the  injury  was  for  the  jury  under  the  facts 
shown.  St.  Louis  &  S.  F.  R.  Co.  v.  Hodge,  53  Okl.  427,  157  P.  60. 

In  an  action  for  injuries  to  persons  on  the  track,  evidence  held  to  raise  an 
issue  as  to  whether  the  negligence  of  plaintiff  or  of  the  railroad  company  was 
the  proximate  cause  of  the  injury  sufficient  to  take  it  to  the  jury.  Chicago, 
R.  I.  &  P.  Ry.  Co.  v.  Martin,  141  P.  276,  42  Okl.  353. 

40  Kingfisher  Mill  &  Elevator  Co.  v.  Westbrook  (Okl.)  192  P.  209. 

(698) 


Art.  3)  ISSUES  AND   TRIAL  THEREOF  §   805 

effect  as  a  matter  of  law  of  undisputed  facts,41  the  construction  of 
a  clear  and  unambiguous  contract,42  not  dependent  on  extrinsic 
facts  in  dispute,43  whether  action  for  breach  of  contract  is  barred 

41  Where  the  facts  are  undisputed,  it  is  for  the  court  to  determine  as  a 
question  of  law  whether  such  facts  show  such  actual  and  continued  change  of 
possession   as   will   render   a    transfer   of   the    personal   property    valid    as 
against  creditors  of  the  seller.    Cochran  Grocery  Co.  v.  Harris,  116  P.  185,  28 
Okl.  715. 

Corap.  Laws  1909,  §  2933.  providing  that  every  transfer  of  personalty  is 
conclusively  presumed,  if  made  by  a  person  having  possession,  not  accompanied 
by  immediate  delivery,  and  followed  by  actual  change  of  possession,  to  be 
void  against  creditors,  does  not  apply  to  a  mortgagee's  sale,  and  does  not  ren- 
der such  sale  void  as  a  matter  of  law,  though  the  purchaser  leaves  the  prop- 
erty in  possession  of  the  mortgagor.  Taylor  v.  Wooden,  30  Okl.  6,  118  P.  372, 
36  L.  R.  A.  (N.  S.)  1018. 

42  Brown  v.  Coppadge,  54  Okl.  88,  153  P.  817;  Waldrep  v.  Exchange  State 
Bank  of  Keifer  (Okl.)  197  P.  509. 

Whether  a  party  to  an  unambiguous  contract  is  an  independent  contractor 
is  a  question  of  law  to  be  determined  by  the  court  from  an  inspection  of  the 
cdiitract  in  the  light  of  surrounding  circumstances.  Pressley  v.  Incorporated 
Town  of  Sallisaw,  54  Okl.  747,  154  P.  660. 

When  a  letter  is  introduced  to  show  a  promise  or  agreement,  it  is  generally 
the  court's  duty  to  construe  the  terms  of  the  letter,  and  not  to  submit  it  to 
the  jury.  Comanche  Mercantile  Co.  v.  Wheeler  &  Motter  Mercantile  Co.,  55 
Okl.  328,  155  P.  583. 

Where  a  contract  consists  of  letters  and  telegrams  containing  no  technical 
words  or  terms  of  art  and  not  dependent  upon  extrinsic  facts  for  its  meaning, 
its  construction  is  wholly  for  the  court.  J.  Rosenbaum  Grain  Co.  v.  Higgins, 
136  P.  1073,  40  Okl.  181;  American  Jobbing  Ass'n  v.  James,  103  P.  670,  24  Okl. 
460;  Brown  v.  Davidson,  142  P.  387,  42  Okl.  598. 

Whether  work  sued  for  comes  within  the  contract  relied  upon  for  recovery, 
and  whether  the  value  of  the  work  is  to  be  measured  by  the  contract,  are 
questions  of  law.  Oklahoma  County  v.  Blakeney,  48  P.  101,  5  Okl.  70. 

Where  the  contract  consists  of  several  written  instruments,  it  is  the  duty 
of  the  court  to  determine  what  the  contract  is.  Bales  v.  Northwestern  Consol. 
Milling  Co.,  96  P.  599,  21  Okl.  421. 

43  The  determination  of  the  meaning  of  a  written  contract  is  ordinarily  a 
question  for  the  court,  and  not  one  of  fact  for  the  jury,  but  where  the  con- 
struction depends  upon  extrinsic  facts  as  to  which  there  is  a  dispute,  its  con- 
struction is  a  mixed  question  of  law  and  fact,  and  is  for  the  jury  under 
proper  instructions  from  the  court.    Rider  v.  Morgan,  31    Okl.  98,  119  P.,  958. 

Where  a  contract  of  employment  is  in  writing,  the  question  of  the  relation 
between  the  parties  is  ordinarily  for  the  court,  but  if  oral  and  the  evidence 
is  conflicting,  or  where  the  written  contract  has  been  modified  by  the  practice 
under  it,  the  question  is  for  the  jury.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Bennett, 
128  P.  705,  36  Okl.  358.  Where  a  contract  of  employment  is  oral,  and  there 
is  no  dispute  as  to  its  terms,  or  only  one  inference  can  be  drawn,  the  ques- 
tion of  the  relation  created  is  for  the  court.  Id. 

(699) 


§  806  TRIAL  (Ch.  IS 

by  limitations,44  whether  correspondence  constitutes  a  contract,45 
whether  a  contract  is  against  public  policy,46  and  the  validity  of  a 
deed,  where  the  pertinent  facts  are  not  in  dispute.47 

§  806.    Negligence  in  general 

Negligence  is  always  a  question  for  the  jury  when  reasonable 
men  may  differ  as  to  the  facts  or  inferences  to  be  drawn.48 

It  is  only  where  the  facts  are  such  that' all  reasonable  men  must 

44  Froage  v.  Webb  (Okl.)  165  P.  150. 

45  Where  a  transaction  consists  entirely  of  letters  and  telegrams,  the  ques- 
tion  whether  such  correspondence  constitutes   a  contract  is  for  the  court. 
J.  Rosenbaum  Grain  Co.  v.   Higgins,   136  P.  1073,  40  Okl.   181;    American 
Jobbing  Ass'n  v.  James,  103  P.  670,  24  Okl.  460;    Atwood  v.  Rose,  122  P. 
929,  32  Okl.  355.' 

46  Whether  a  contract  is  against  public  policy  is  for  the  court.     Huber  v. 
Gulp,  46  Okl.  570,  149  P.  216.     Evidence  in  an  action  on  a  contract,  made  by 
defendant  in  an  alienation  suit,  to  reimburse  the  wife  for  the  amount  she 
might  lose  by  a  settlement  with  her  busbar  '.  held  to  show  the  contract  with 
sufficient  definiteness  to  require  submission  of  the  case  to  the  jury.    Id. 

47  Where  cancellation  of  a  deed  is  sought  because  not  joined  in  by  the 
husband,  execution  and  acknowledgment  thereof  by  the  wife  being  admitted, 
its  validity  is  for  the  court.    Wesley  v.  Diamond,  44  Okl.  484,  144  P.  1041. 

48  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Schands,  57  Okl.  688,  157  P.  349;   Chicago, 
R.  I.  &  P.  R.  Co.  v.  Felder,  56  Okl.  220,  155  P.  529;    Chicago,  R.  I.  &  P.  Ry. 
Co.   v.  Rogers,  60  Okl.  249,  159  P.   1132;    Rock  Island  Coal  Mining  Co.   v. 
Davis,  44  Okl.  412,  144  P.  600;    St.  Louis  &  S.  P.  R.  Co.  v.  Williams,  122 
P.  152,  31  Okl.  450;    Muskogee  Vitrified  Brick  Co.  v.  Napier,   126  P.  792, 
34  Okl.  618;    Mean  v.  Callison,  116  P.  195,  28  Okl.  737;    Neeley  v.  South- 
western Cotton  Seed  Oil  Co.,  75  P.  537,  13  Okl.  356,  64  L.  R.  A.  145;    Okla- 
homa Gas  &  Electric  Co.  y.  Lukert,  84  P.  1076,  16  Okl.  397;    Choctaw,  O.  & 
W.  Ry.  Co.  v.  Wilker,  84  P.  1086,  16  Okl.  384,  3  L.  R.  A.  (N.  S.)  595;    Home 
Oil  &  Gas  Co.  v.  Dabney,  79  Kan.  820,  102  P.  488 ;    St.  Louis  &  S.  F.  R.  Co. 
v.  Copeland,  102  P.  104,  23  Okl.  837;   Patterson  v.  Missouri,  K.  &  T.  Ry.  Co., 
104  P.  31,  24  Okl.  747. 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Weldon,  39  Okl.  369,  135  P.  8. 

In  action  for  injuries  to  a  child  from  the  exhaust  pipe  of  a  stationary 
engine  extending  out  of  a  building,  whether  the  premises  constituted  an  at- 
tractive nuisance  and  defendant  was  guilty  of  negligence  in  respect  thereto, 
held  for  the  jury.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Wright,  62  Okl.  134,  161 
P.  1070. 

In  an  action  for  injuries  from  falling  into  an  excavation  on  a  lot  adjoining 
premises  occupied  by  plaintiff,  due  to  the  giving  way  of  a  path  which  ran 
near  the  edge  of  the  excavation,  the  question  whether  defendants  were  neg- 
ligent in  failing  to  wall  up  such  excavation  held  for  the  jury.  Connally  v. 
Woods,  39  Okl.  186,  134  P.  869.  Where  an  occupant  of  premises  adjoining  a 
lot  upon  which  an  excavation  has  recently  been  made  is  injured  from  fall- 
ing into  the  excavation  while  following  a  path  near  its  edge,  which  path 
gives  way  for  want  of  lateral  support,  and  it  appears  that  she  had  been  ac- 

(700) 


Art.  3)  ISSUES  AND   TRIAL   THEREOF  §   806 

draw  the  same  conclusion  from  them,  that  the  question  of  negli- 
gence is  ever  considered  as  one  of  law  for  the  court.49  However, 

customed  to  use  this  path  for  several  months,  she  is  not  guilty  of  contribu- 
tory negligence,  as  a  matter  of  law.  Id. 

Issues  as  to  negligence  and  contributory  negligence  and  the  proximate 
cause  of  an  injury  are  for  the  jury,  where  the  evidence  is  conflicting,  and 
where  different  minds  might  reasonably  draw  different  conclusions.  St. 
Louis  &  S.  F.  R.  Co.  v.  Copeland,  102  P.  104,  23  Okl.  837 ;  Harris  v.  Missouri, 
K.  &  T.  Ry.  Co.,  103  P.  758,  24  Okl.  341,  24  L.  R.  A.  (N.  S.)  858. 

Streets  and  parking  places. — In  action  against  a  city  for  damages  for  fall- 
ing into  open  catch-basin  on  public  street,  evidence  held  sufficient,  as  against 
a  'demurrer  to  the  evidence,  to  charge  city  with  notice  of  open  condition  of 
catch-basin.  City  of  Ada  v.  Smith  (Okl.)  175  P.  924. 

In  action  against  city  for  personal  injury  to  servant  of  abutting  owner 
impliedly  authorized  to  enter  parking  space  to  mow  grass  thereon,  held,  on 
the  evidence,  that  city's  negligence  in  not  keeping  space  in  a  condition  rea- 
sonably safe  for  use  was  for  jury.  City  of  Shawnee  v.  Drake  (Okl.)  171  P. 
727,  L.  R.  A.  1918D,  810. 

Railroad  and  crossing  accidents. — In  an  action  for  injury,  at  a  r'ailroad 
crossing,  held,  on  the  evidence,  that  court  did  not  err  in  submitting  the  ques- 
tion of  negligence  to  the  jury.  Ft.  Smith  &  W.  R.  Co.  v.  Moore  (Okl.)  169 
P.  904. 

Evidence  held  to  present  question  for  jury  whether  there  was  excessive 
speed  of  train  by  which  plaintiff  crossing  the  track  was  injured.  Chicago, 
R.  I.  &  P.  Ry.  Co.  v.  Barton,  59  Okl.  109,  159  P.  250. 

Under  the  evidence  in  an  action  against  a  railroad  company,  for  injuries 
from  failure  to  restore  a  highway  to  proper  condition,  held,  that  whether  the 
highway  had  been  restored,  as  required  by  Comp.  Laws  1909,  §§  1360,  7498, 
was  for  the  jury.  St.  Louis  &  S.  F.  R.  Co.  v.  Bell,  58  Okl.  84,  159  P.  336, 
L.  R.  A.  1917A,  543. 

Evidence,  in  an  action  for  damages  from  collision  between  a  train  and 
plaintiff's  wagon  at  a  crossing,  held  sufficient  to  take  the  case  to  the  jury 
on  the  question  of  negligence  and  contributory  negligence.  St.  Louis  &  S. 
F.  R.  Co.  v.  Clark,  142  P.  396,  42  Okl.  638. 

Under  the  evidence,  in  an  action  for  injuries  from  being  thrown  from  a 
buggy  on  a  dark  night  into  an  open  unguarded  sewer  at  an  unlighted  rail- 
road crossing,  held,  that  the  question  of  the  defendant  railway  company's 
negligence  was  for  the  jury.  •  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  O'Connor,  142 
P.  1111,  43  Okl.  268. 

Whether  defendant's  violation  of  an  ordinance  requiring  safety  gates  and 
competent  persons  to  operate  same  caused  plaintiff's  injury  was  for  the  jury. 
St.  Louis  &  S.  F.  R.  Co.  V.  Hart,  45  Okl.  659,  146  P.  436. 

In  an  action  for  injuries  at  a  crossing,  evidence  held  sufficient  to  take  to 
the  jury  the  question  of  proximate  cause.  St.  Louis  &  S.  F.  Ry.  Co.  v.  Krai, 
122  P.  177,  31  Okl.  624. 

Where,  in  an  action  for  death  at  a  crossing,  the  evidence  is  conflicting  as  to 
whether  the  engineer  used  ordinary  care  to  prevent  injuring  the  man,  the 

,48  St.  Louis-San  Francisco  Ry.  Co.  v.  Teel  (Okl.)  198  P.  78;  Prickett  v. 
Sulzberger  &  Sons  Co.,  57  Okl.  567,  157  P.  356. 

(701) 


§  806  TRIAL  (Ch.  13 

negligence  is  so  much  a  mixed  question  of  law  and  fact  that  courts 
are  seldom  justified  in  saying  that  all  reasonable  men  will  agree 

question  was  for  the  jury.  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Baker,  130  P. 
577,  37  Okl.  48. 

Where  a, footpath  across  and  along  a  railroad  track  has  been  habitually 
used  by  the  public  for  many  years,  it  is  a  question  of  fact  whether  the  rail- 
road company  has  not  acquiesced  in  such  use.  Wilhelm  v.  Missouri,  O.  & 
G.  Ry.  Co.,  52  Okl.  317,  152  P.  1088,  L.  R.  A.  1916C,  1029. 

In  action  for  the  death  of  a  telegraph  company's  employ§  struck  by  de- 
fendant's train,  evidence  as  to  whether  engineer  and  fireman  saw  deceased 
in  a  place  of  peril  in  time  to  have  avoided  the  injury  by  the  exercise  of 
ordinary  care  held  to  make  a  question  for  the  jury.  Lusk  v.  Haley,  75  Okl. 
206,  181  P.  727. 

"Whether  certain  place  constitutes  part  of  station  grounds,  or  public  high- 
way, where  railway  company  is  by  statute  exempt  from  maintaining  fence,  is 
a  question  of  fact  for  the  jury.  Missouri,  K.  &  T.  Ry.  Co.  v.  Bandy,  75  Okl, 
57,  181  P.  313. 

In  an  action  against  a  railroad  company  for  injuries  to  cattle,  because  of 
unfenced  station  grounds,  the  question  of  the  necessity  of  such  grounds  is 
for  the  jury.  Dickinson  v.  Stewart  (Okl.)  174  P.  233.  In  an  action  against 
a  railroad  company  for  injuries  to  cattle,  because  of  unfenced  station  grounds, 
where  there  is  no  evidence  controverting  the  necessity  of  such  grounds,  the 
court  must  instruct  for  defendant.  Id. 

Where  in  a  stock-killing  case,  plaintiff's  right  of  recovery  depended  on  neg- 
ligence, and  there  was  no  evidence  of  negligence  or  circumstances  from 
which  negligence  might  reasonably  be  inferred,  the  court  should  have  directed 
a  verdict  for  defendant.  Ft.  Smith  &  W.  R.  Co.  v.  Dixon,  51  Okl.  722,  152 
P.  350. 

Where  uncontroverted  evidence  of  engineer  and  fireman  shows  that  they 
did  all  they  could  have  done  on  discovering  cow  on  track  to  prevent  injury, 
verdict  should  be  directed  for  railroad.  Missouri,  K.  &  T.  Ry.  Co.  v.  Raines, 
59  Okl.  52,  158  P.  936. 

Whether  a  railroad  company  is  liable  for  injuries  caused  to  stock  in  a 
field,  frightened  by  steam,  is  for  the  jury  where  reasonable  men  might  differ 
as  to  the  conclusions  to  be  drawn  from  the  circumstances.  Chicago,  R.  I. 
&  P.  R.  Co.  v.  Hine,  59  Okl.  143,  158  P.  597. 

Question  whether  the  place  of  accident  was  such  as  Rev.  Laws  1910,  § 
1435  (Comp.  Laws  1909,  §  1389),  required  to  be  fenced  or  was  a  part  of  the 
station  grounds  or  she  is  unable  to  consent.  People  v.  MacDonald,  140  P. 
256,  167  Cal.  545. 

Where,  in  an  action  for  the  killing  of  a  hog  struck  by  a  train,  the  uncon- 
tradicted  evidence  showed  that  the  railroad  company  had  used  ordinary 
care  to  prevent  the  injury,  it  was  error  to  refuse  a  peremptory  instruction  for 
defendant.  St.  Louis  &  S.  F.  R.  Co.  v.  Higgs,  141  P.  10,  42  Okl.  171. 

Where,  in  a  stock-killing  case,  there  is  no  evidence  of  negligence  or  circum- 
stances from  which  negligence  may  be  reasonably  inferred,  a  verdict  should 
be  directed  for  defendant.  Missouri,  K.  &  T.  Ry.  Co.  v.  Box,  48  Okl.  402, 
150  P.  111. 

Where  the  testimony  of  the  engineer  and  fireman  is  positive  that  the 
alarm  was  sounded,  emergency  brakes  applied  as  soon  as  stock  was  discovered 

(702) 


Art.  3)  ISSUES  AND   TRIAL  THEREOF  §    806 

with  them  on  question  whether  given  facts  constitute  ordinary 
care.50  Where  standard  and  measure  of  duty  is  defined  by  law, 
and  is  same  under  all  circumstances,  its  omission  is  negligence,  and 
may  be  so  declared- by  court.51  Where  the  standard  of  duty  to  use 
care  is  not  fixed,  and  shifts  with  circumstances,  it  is  not  determin- 
able  as  matter  of  law,  and  must  be  submitted  to  jury.62 

The  jury  has  no  exclusive  province,  unless  there  is  an  issue  as  to 
the  existence  of  such  an  act  of  omission  or  commission  as  in  law 
would  constitute  negligence.58 

It  has  been  held  a  question  for  the  jury  whether  a  city  had  suffi- 
cient notice  of  defects  in  its  public  ways.54 

on  the  track,  and  everything  possible  done,  and  there  is  no  testimony  to 
show  negligence,  the  court  should  direct  a  verdict  for  defendant.  St.  Louis 
&  S.  F.  R.  Co.  v.  Webb,  128  P.  252,  36  Okl.  235. 

Where,  in  an  action  for  killing  plaintiff's  horse,  there  was  no  evidence 
from  which  negligence  on  defendant's  part  could  be  inferred,  the  court 
should  have  directed  verdict  for  defendant.  St.  Louis  &  S.  F.  R.  Co.  v.  Mc- 
Clelland, 128  P.  1081,  36  Okl.  573. 

In  an  action  by  a  widow  for  killing  of  her  husband  by  defendant's  train, 
evidence  held  not  to  warrant  submission  of  the  last  clear  chance  rule.  Mis- 
souri, O.  &  G.  Ry.  Co.  v.  Lee  (Okl.)  175  P.  367. 

Fires. — It  was  a  question  of  fact  whether  the  company  was  negligent  in 
permitting  inflammable  material  to  accumulate  on  the  right  of  way.  Missouri, 
O.  &  G.  Ry.  Go.  v.  Gentry,  122  P.  537,  31  Okl.  579.  Allowing  combustible 
material  to  accumulate  on  right  of  way  is  not  negligence  per  se,  and  the 
railway  company  is  not  negligent  unless  such  accumulations  w^ere  such  as 
would  not  have  been  permitted  by  an  ordinarily  prudent  man  on  his  own 
premises.  Id. 

Where  it  appeared  that  a  fire  was  started  on  the  right  of  way  by  a  loco- 
motive, held  the  province  of  the  jury  to  determine  whether  the  presumption  of 
negligence  was  overcome.  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Marlin,  128  P. 
108,  33  Okl.  510. 

so  Prickett  v.  Sulzberger  &  Sons  Co.,  57  Okl.  567,  157  P.  356. 

sild. 

52  id;   Littlejohn  v.  Midland  Valley  R.  Co.,  47  Okl.  204,  148  P.  120. 

B3  Smith  v.  Acme  Milling  Co.,  126  P.  190,  34  Okl.  439. 

It  is  only  when  the  facts  are  such  that  all  reasonable  men  must  draw  the 
same  conclusions  that  the  question  of  negligence,  other  than  failure  to  per- 
form a  statutory  duty,  becomes  a  question  of  law  for  the  court.  Farrier  v. 
Colorado  Springs  Rapid  Transit  Ry.  Co.,  95  P.  294,  42  Colo.  331,  126  Am.  St. 
Rep.  158;  Missouri,  K.  &  T.  Ry.  Co.  v.  Shepherd,  95  P.  243,  20  Okl.  626; 
Metropolitan  Ry.  Co.  y.  Fonville,  91  P.  902,  19  Okl.  283;  Sans  Bois  Coal 

^Bellevue  Gas  &  Oil  Co.  v.  Carr  (Okl.)  161  P.  203;  City  of  Lawton  v. 
Hills,  53  Okl.  243,  156  P.  297;  Cleveland  Trinidad  Paving  Co.  v.  Mitchell, 
140  P.  416,  42  Okl.  49;  City  of  Woodward  v.  Bowder,  46  Okl.  505,  149  P.  138. 

(703) 


§  807  TRIAL  (Ch.  13 

§  807.     Contributory  negligence — Assumption  of  risk 

"The  defense  of  contributory  negligence  or  of  assumption  of  risk 
shall,  in  all  cases  whatsoever,  be  a  question  of  fact,  and  shall,  at 
all  times,  be  left  to  the  jury."  5B 

This  provision  is  not  merely  declaratory  of  the  common  law,  but 
requires  that  these  defenses  be  left  to  the  jury  in  all  cases.56  It 
has  been  frequently  applied  in  actions  for  injuries  to  employes,57 
and  other  persons; 58  as  has  the  general  rule  requiring  submission 

Co.  v.  Janeway,  99  P.  153,  22  Okl.  425 ;    Independent  Cotton  Oil  Co.  v.  Beach- 
am,  31  Okl.  384,  120  P.  969. 

Where  from  the  evidence,  though  undisputed,  reasonable  men  might  draw 
different  conclusions  as  to  negligence  or  contributory  negligence,  such  ques- 
tions are  for  the  jury.  Sans  Bois  Coal  Co.  v.  Janeway,  99  P.  153,  22  Okl.  425. 

55  Const.  Okl.  art.  23,  §  6;    Wichita  Falls  &  N.  W.  Ry.  Co.  v.  Groves  (Okl.) 
196  P.  677;    Hailey-Ola  Coal  Co.  v.  Morgan,  39  Okl.  71,  134  P.  29;    City  of 
Ada  v.  Smith  (Okl.)  175  P.  924. 

In  view  of  this  provision,  the  jury's  finding  is  conclusive  upon  the  court. 
Dickinson  v.  Cole  (Okl.)  177  P.  570. 

56  Dickinson  v.  Cole  (Okl.)  177  P.  570;  Dickinson  v.  Whitaker,  75  Okl.  243, 
182  P.  901;    Lusk  v.  Phelps  (Okl.)  175  P.  756;    St.  Louis  &  S.  F.  R.  Co.  v. 
Long,  137  P.  1156,  41  Okl.  177,  Ann.  Cas.  1915C,  432;    St.  Louis  &  S.  F.  R. 
Co.  v.  Hart,  45  Okl.  659,  146  P.  436;    Oklahoma  Ry.  Co.  v.  Milam,  45  Okl. 
742,  147  P.  314 ;    Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Hill,  129  P.  13,  36  Okl.  540,  43 
L.  R.  A.  (N.  S.)  622;   Thorp  v.  St.  Louis  &  S.  F.  R.  Co.  (Okl.)  175  P.  240;    St. 
Louis  &  S.  F.  R.  Co.  v.  Boush  (Okl.)  174  P.  1036 . 

The  court  should  not  instruct  that  certain  circumstances  or  facts  do  or 
do  not  constitute  contributory  negligence.  Wichita  Falls  &  N.  W.  Ry.  Co. 
v.  Woodman,  64  Okl.  326,  168  P.  209. 

67  Oklahoma  Coal  Co.  v.  Corrigan  (Okl.)  168  P.  1024 ;  Chicago,  R.  I.  & 
P.  Ry.  Co.  v.  Warren,  63  Okl.  190,  163  P.  705;  St.  Louis  &  S.  F.  R.  Co.  v. 
Long,  137  P.  1156,  41  Okl.  177,  Ann.  Cas.  1915C,  432 ;  .Osage  Coal  &  Mining 
Co.  v.  Sperra,  142  P.  1040,  42  Okl.  726 ;  Sulsberger  &  Sons  Co.  v.  Castleberry, 
139  P.  837,  40  Okl.  613;  Frisco  Lumber  Co.  v.  Thomas,  142  P.  310,  42  Okl. 
670;  Dewey  Portland  Cement  Co.  v.  Blunt,  38  Okl.  182,  132  P.  659;  Chicago, 
R.  I.  &  P.  R.  Co.  v.  Duran,  38  Okl.  719,  134,  P.  876;  Petroleum  Iron  Works 
Co.  v.  Wantland,  114  P.  717,  28  Okl.  481 ;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Felder, 
56  Okl.  220,  155  P.  529;  Dickinson  v.  Whitaker,  75  Okl.  243,  182  P.  901 ;  Mid- 
land Valley  R.  Co.  v.  Cox  (Okl.)  170  P.  485;  Sandals  v.  Mizpah  Mining  Co. 
(Okl.)  168  P.  808. 

<>8  In  action  for  injuries  from  falling  into  excavation  in  a  street,  held, 
that  a  refusal  to  instruct  on  contributory  negligence  of  which  there  was  evi- 
dence was  error,  under  Const,  art.  23,  §  6.  City  of  Poteau  v.  Delaney,  48 
Okl.  361,  150  P.  208. 

Whether  the  negligence  of  the  chauffeur  was  to  be  imputed  to  deceased, 
who  was  riding  with  him  on  invitation  of  the  owner  of  the  car,  held  a  ques- 
tion of  law  for  the  court  and  not  one  of  contributory  negligence  for  the  jury, 

(704) 


Art.  3)  ISSUES   AND  TRIAL  THEREOF  §    807 

to  the  jury  of  all  controverted  questions  of  fact,  including  contribu- 
tory negligence  and  assumption  of  risk.59  In  a  few  instances  it 

under  Const,  art.  23,  §  6.  St.  Louis  &  S.  F.  K.  Co.  v.  Bell,  58  Okl.  84,  159 
P.  336,  L.  R.  A.  1917A,  543. 

Under  Const,  art.  23,  §  6  (Williams  Ann.  Const.  §  355),  providing  that  the 
defense  of  contributory  negligence  shall  always  be  left  to  the  jury,  it  is 
error  to  take  the  case  from  the  jury,  where  there  is  any  competent  testimony 
which,  when  considered  in  the  light  most  favorable  to  plaintiff,  reasonably 
tends  to  show  a  primary  negligence.  Anthony  v.  Bliss,  39  Okl.  237,  134 
P.  1122. 

Where,  in  an  action  for  personal  injuries  at  a  crossing,  the  evidence  was 
conflicting  as  to  whether  plaintiff  looked  and  listened  before  crossing  the 
track,  the  question  of  contributory  negligence  was  for  the  jury  under  Wil- 
liams' Ann.  Const,  art.  23,  §  6.  Midland  Valley  R.  Co.  v.  Shores,  136  P.  157, 
40  Okl.  75,  49  L.  R.  A.  (N.  S.)  814. 

As  contributory  negligence  is,  under  Const,  art.  23,  §  6,  a  question  of  fact, 
court,  in  motorman's  action  for  injury  from  collision  with  defendant's  en- 
gine, properly  left  that  question  to  jury  under  proper  instructions.  St.  Louis 
&  S.  F.  Ry.  Co.  v.  McFall,  63  Okl.  124,  163  P.  £69. 

59  Personal  injuries,  —  A  person  who  receives  an  injury  on  account  of  a  de- 
fective sidewalk  is  not  necessarily  precluded  from  recovering  damages  there- 
for merely  because  of  his  previous  knowledge  of  the  defect,  but  such  knowl- 
edge is  an  element  for  the  jury  to  consider  in  determining  the  question  of 
ordinary  care.  City  of  Ottawa  v.  Black,  61  P.  985,  10  Kan.  App.  439;  Pit- 
man v.  City  of  El  Reno,  37  P.  851,  2  Okl.  414,  judgment  reversed  Pittman  v. 
Same,  46  P.  495,  4  Okl.  638. 

It  is  not  contributory  negligence  per  se  to  use  a  sidewalk  with  knowledge 
of  its  defective  condition.  City  of  Highlands  v.'  Raine,  47  P.  283,  23  Colo. 
295  ;  City  of  Guthrie  v.  Finch,  75  P.  288,  13  Okl.  496. 

The  question  as  to  whether  or  not  the  whole  width  of  a  street  of  a  city 
must  be  kept  in  a  safe  condition  for  travel  is  a  question  of  fact  for  the  jury. 
City  of  Guthrie  v.  Swan,  41  P.  .84,  3  Okl.  116.  Where,  in  an  action  for  a 
fall  received  in  passing  over  a  partially  graded  street  at  night,  on  which 
there  were  no  barriers,  the  evidence  was  conflicting  as  to  the  condition  of 
the  street,  and  as  to  whether  it  was  lighted,  and  plaintiff  claimed  not  to  know 
the  condition  of  the  street,  the  question  of  contributory  negligence  is  for  the 
jury.  Id. 

Where  a  traveler  on  horseback,  passing  along  a  street,  saw  a  light,  which 
he  presumed  to  be  a  danger  signal,  some  40  feet  from  him,  and,  failing  to 
slacken  speed  to  investigate,  fell  into  an  excavation  which  extended  beyond 
the  signal,  the  question  of  his  contributory  negligence  was  for  the  jury.  City 
of  Oklahoma  City  v.  Welsh,  41  P.  598,  3  Okl.  288. 

Whether  one  injured  while  walking  on  a  sidewalk  at  night,  with  knowledge 
that  it  is  defective,  and  looking  for  the  defect  at  the  time,  is  guilty  of  con- 
tributory negligence,  is  a  question  for  the  jury.  Pitman  v.  City  of  El  Reno, 
37  P.  851,  2  Okl.  414,  judgment  reversed  Pittman  v.  City  of  El  Reno,  46  P. 
495,  4  Okl.  638. 

Where,  in  an  action  against  a  city  for  injuries  resulting  from  a  defective 
sidewalk,  defendant  demurred  to  the  evidence,  which  showed  contributory 
negligence,  it  was  the  duty  of  the  court  under  Code  1890  to  say  whether  or 


HON.PL.&  PBAC.-^S  (705) 


§  807  TRIAL  (Ch.  13 

t 

has  been  applied  in  actions  for  damages  to  property.80  It  does 
not  apply,  however,  where  there  is  no  evidence  of  negligence  by  the 
defendant.61 

not  plaintiff  was  guilty  of  contributory  negligence  as  a  matter  of  law.  Pitt- 
man  v.  City  of  El  Reno.  46  P.  495,  4  Okl.  638. 

The  plaintiff  tripped  in  the  darkness  over  a  piece  of  wire  stretched  across 
the  sidewalk,  in  connection  with  a  building  in  process  of  construction.  The 
usual  city  electric  light  near  that  point  was  not  burning,  and  there  was  no 
danger  signal.  The  plaintiff's  testimony  was  that  she  was  passing  quietly 
and  carefully  along ;  that  she  passed  the  point  several  times  a  day,  but  had 
not  seen  the  sidewalk  in  that  condition  before,  nor  knew  that  the  sidewalk 
had  been  taken  up;  and  that,  as  well  as  she  could  see,  there  was  plenty  of 
room  to  walk.  Held,  that  the  question  of  her  negligence  was  for  the  jury. 
City  of  Guthrie  v.  Thistle,  49  P.  1003,  5  Okl.  517. 

The  sufficiency  of  a  highway  is  usually  a  mere  question  of  fact  to  be  de- 
termined by  the  jury  under  the  evidence  concerning  its  actual  condition. 
City  of  Guthrie  v.  Swan,  51  P.  562,  5  Okl.  779.  Plaintiff  was  injured  while 
passing  by  a  point  of  danger  upon  one  of  defendant's  streets.  She  was  not 
acquainted  with  the  danger.  The  night  was  particularly  dark.  She  was 
walking  slowly  and  carefully.  There  were  no  lights — either  danger  signals 
or  the  usual  electric  light — near  the  point.  No  barriers  to  protect  travelers 
from  the  place  of  danger  were  erected.  When  she  discovered  an  obstruction, 

60  In  an  action  against  a  railroad  company  for  failure  to  ship  certain  seed, 
the  question  of  contributory  negligence  in  exposing  the  seed  to  rains,  and 
permitting  it  to  remain  so  exposed  for  a  period  during  which  rains  would 
likely  fall  upon  it,  whereby  it  would  heat  and  spoil,  thereby  contributing  to 
the  injury,  is  for  the  jury.  Chicago,  R.  I.  &  P.  R.  Co.  v.  Beatty,  116  P.  171, 
27  Okl.  844. 

Where,  in  an  action  for  damages  to  an  automobile  at  a  crossing,  there 
was  evidence  tending  to  prove  that  defendant's  negligence  proximately  caused 
the  injury,  it  was  not  error,  under  Const,  art.  23,  §  6  (Williams'  Ann.  Const.  § 
355),  to  overrule  defendant's  demurrer  to  the  evidence  and  motion  to  instruct 
a  verdict,  regardless  of  any  evidence  of  plaintiff's  contributory  negligence. 
St.  Louis  &  S.  F.  R.  Co.  v.  Model  Laundry,  141  P.  970,  42  Okl.  501.  Evidence 
in  an  action  for  damages  to  an  automobile  at  a  crossing  held  sufficient  to  take 
to  the  jury  the  question  whether  defendant  was  guilty  of  negligence  proxi- 
mately causing  the  injury.  Id.  Under  the  evidence  in  an  action  for  damages 
to  an  avitomobile  at  a  crossing,  held  not  error  to  submit  to  the  jury  the  ques- 
tion whether  plaintiff  might  recover,  regardless  of  his  contributory  negligence 
by  reason  of  defendants  having  been  guilty  of  willful  and  wanton  negligence 
proximately  causing  the  injury.  In  an  action  for  damages  to  an  automobile 
at  a  crossing,  a  mere  inference  of  discovery  of  peril  in  time  for  defendant 
to  have  avoided  the  collision  by  ordinary  care,  predicated  alone  on  certain 
circumstances  and  contradicted  by  the  engineer's  positive  testimony,  held 
too  improbable  to  warrant  submitting  to  the  jury  the  question  of  discovered 
peril. 

ei  Barnsdall  Oil  Co.  v.  Ohler,  48  Okl.  651,  150  P.  98;  Phoenix  Printing  Co. 
v.  Durham,  122  P.  708,  32  Okl.  575,  38  L.  R.  A.  (N.  S.)  1191;  Chicago,  R.  I. 
&  P.  Ry.  Co.  v.  Barton,  59  Okl.  109,  159  P.  250. 

(706) 


Art.  3)  ISSUES  AND   TRIAL  THEREOF  §  807 

On  the  issue  of  an  employe's  assumption  of  risk  in  an  action  un- 
der the  federal  Employers'  Liability  Act  (U.  S.  Comp.  St.  §§  8657- 
8665),  where  the  evidence  is  such  that  all  reasonable  men  must 

she  stepped  down  from  the  sidewalk,  and  out  into  the  road,  where  she  thought 
it  was  smooth.  She  thought  it  was  only  down  about  a  foot,  but  it  proved 
to  be  two  or  three  feet,  and,  in  doing  so,  she  was  injured.  Held,  that  the 
question  of  contributory  negligence  was  for  the  jury.  Id. 

The  sufficiency  of  notice  to  fasten  liability  upon  a  city 'for  a  defective  side- 
walk is  a  question  of  fact  to  be  determined  by  the  jury  under  all  the  cir- 
cumstances surrounding  the  particular  case.  Town  of  Norman  v.  Teel,  69 
P.  791,  12  Okl.  69.  Whether  a  person  injured  by  a  defective  sidewalk  was 
in  the  exercise  of  ordinary  care  at  the  time  of  the  injury  is  a  question  of 
fact  for  the  jury.  Id. 

Negligence  is  generally  for  jury,  and  when  competent  evidence  thereof  has 
been  admitted,  it  is  only  where  standard  of  duty  may  be  determined  as  mat- 
ter of  law,  or  where  on  undisputed  facts  reasonable  men  could  not  draw  dif- 
ferent conclusions,  that  courts  may  take  question  from  jury.  City  of  Cush- 
ing  v.  Stanley  (Okl.)  172  P.  628. 

The  determination  as  to  what  constitutes  ordinary  care,  reasonable  pru- 
dence, and  the  like  is  for  the  jury,  unless  the  facts  are  such  that  all  rea- 
sonable men  must  draw  the  same  conclusion.  Dickinson  v.  Granbery  (Okl.) 
174  P.  776. 

Negligence  is  ordinarily  a  question  of  fact  for  the  jury,  and  where  the 
standard  of  duty  is  not  fixed,  but  shifts  with  the  circumstances  of  the  case, 
and  where  the  evidence  is  su.TScient,  whether  duty  has  been  complied  with 
is  for  the  jury.  Ponca  City  Ice  Co.  v.  Robertson  (Okl.)  169  P.  1111. 

Where  issue  of  contributory  negligence  is  raised  by  pleadings,  and  there  is 
any  evidence  to  support  defense,  question  is  for  jury.  Enid  Mill  &  Elevator 
Co.  v.  Kester,  59  Okl.  13,  157  P.  355. 

The  fact  that  plaintiff  complained  to  defendant  of  the  defect  in  a  tank 
placed  by  defendant  in  plaintiffs  kitchen  held  not  to  establish  contributory 
negligence  as  matter  of  law  precluding  recovery  for  injuries  received  by  the 
falling  of  the  tank.  Moore  v.  Johnson,  136  P.  422,  39  Okl.  587. 

Whether  the  plaintiff  in  a  personal  injury  case  has  exercised  ordinary  care 
to  avoid  injury  is  for  the  jury.  Cleveland  Trinidad  Paving  Co.  v.  Mitchell, 
140  P.  416,  42  Okl.  49. 

In  an  action  for  injuries,  the  questions  of  negligence  and  contributory  neg- 
ligence are  primarily  for  the  jury,  and  only  become  questions  of  law  when 
there  is  no  dispute  in  the  evidence  and  but  one  inference  can  be  reasonably 
drawn  therefrom.  Kimic  v.  San  Jose-Los  Gatos  Interurban  Ry.  Co.,  104  P. 
986,  156  Cal.  379 ;  Rudd  v.  Byrnes,  105  P.  957,  156  Cal.  636,  26  L.  R.  A.  (N.  S.) 
134,  20  Ann.  Cas.  124;  St.  Louis  &  S.  F.  R.  Co.  v.  Loftis,  106  P.  824,  25 
Okl.  496. 

Where  the  evidence  is  conflicting,  or  where  the  facts  are  undisputed,  and 
different  minds  might  reasonably  draw  different  conclusions  from  them,  the 
question  of  negligence  is  for  the  jury,  and  hence  it  was  not  negligence  per 
se  for  a  person  approaching  a  railroad  crossing,  who  had  once  looked  and 
listened  at  a  distance  of  about  50  feet  from  the  track,  and  seeing  no  train 
approaching  within  the  distance  of  500  or  600  feet,  for  which  distance  the 

(707) 


§  807  TRIAL  (Ch.  13 

reach  the  same  conclusion,  the  question  is  one  of  law;  but,  where 
the  facts  are  controverted,  or  where  different  inferences  may  be 
drawn  therefrom,  the  question  is  for  the  jury.62 

view  was  unobstructed,  to  attempt  to  cross  without  again  looking  and  listen- 
ing. Clark  v.  St.  Louis  &  S.  F.  R.  Co.,  108  P.  361,  24  Okl.  764. 

Failure  of  a  person,  driving  a  wagon  which  was  struck  by  a  street  car  at  a 
street  intersection,  to  look  and  listen  held  not  contributory  negligence  per 
se.  Chickasha  St.  Ry.  Co.  v.  Marshall,  141  P.  1172,  43  Okl.  192.  Under  con- 
flicting evidence,  in  an  action  for  injuries  from  collision  between  a  street 
car  and  a  wagon,  held,  that  the  questions  of  defendant's  negligence  and  plain- 
tiff's contributory  negligence  were  for  the  jury.  Id. 

Injuries  to  employes. — Where  it  is  contended  that  injured  servant  was 
guilty  of  negligence,  that  question  is  for  jury  under  proper  instructions. 
Sulzberger  &  Sons  Co.  of  Oklahoma  v.  Strickland,  60  Okl.  158,  159  P.  833; 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Lillard,  62  Okl.  63,  161  P.  779;  Dickinson  v. 
Granbery  (Okl.)  174  P.  776;  Oklahoma  Coal  Co.  v.  Corrigan  (Okl.)  168  P. 
1024;  San  Bois  Coal  Co.  v.  Resetz,  143  P.  46,  43  Okl.  384;  Missouri,  O.  & 
G.  Ry.  Co.  v.  Miller,  45  Okl.  173,  145  P.  367 ;  Choctaw  Cotton  Oil  Co.  v.  Pope, 
47  Okl.  333,  148  P.  170;  Enid  City  Ry.  Co.  v.  Webber,  121  P.  235,  32  Okl.  180, 
Ann.  Cas.  1914A,  569 ;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Hill,  129  P.  13,  36  Okl. 
540,  43  L.  R.  A.  (N.  S.)  622;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Wright,  39  Okl.  84, 
134  P.  427. 

It  is  not  negligence  per  se  for  foreman  of  section  crew  to  risk  his  life  in 
attempting  to  protect  the  crew  and  passengers  of  an  approaching  train  from 
danger.  Dickinson  v.  Granbery  (Okl.)  174  P.  776.  t 

Assumption  of  risk  held  for  the  jury.  St.  Louis  &  S.  F.  R.  Co.  v.  Brown, 
45  Okl.  143,  144  P.  1075 ;  Choctaw  Cotton  Oil  Co.  v.  Pope,  47  Okl.  383,  148  P. 
170;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Lillard,  62  Okl.  63,  161  P.  779;  Chicago, 
R.  I.  &  P.  Ry.  Co.  v.  Rogers,  60  Okl.  249,  159  P.  1132;  Sandals  v.  Mizpah 
Mining  Co.  (Okl.)  168  P.  808. 

In  action  for  the  death  of  a  railroad  employ^  killed  by  the  overturning  of 
a  locomotive,  evidence  held  to  justify  the  submission  of  assumption  of  risk 
to  the  jury.  Kansas  City,  M.  &  O.  Ry.  Co.  v.  Roe  (Okl.)  180  P.  371. 

In  determining  assumption  of  risk,  whether  an  employ^  was  inexperienced 
or  ignorant  of  the  dangers  incident  to  his  employment,  whether  he  was  act- 
ing under  his  master's  orders,  and  whether  the  danger  was  so  apparent  that 
he  should  have  refused  to  obey  the  orders,  are  questions  for  the  jury.  Enid 
Electric  &  Gas  Co.  v.  Decker,  128  P.  708,  36  Okl.  367. 

The  question  whether  a  servant  saw  and  appreciated  the  danger  caused 
by  his  master's  negligence  held  for  the  jury.  Missouri,  K.  &  T.  Ry.  Co.  v. 
Hudson  (Okl.)  175  P.  ,743,  9  A,  L.  R.  223. 

An  employs  not  engaged  in  making  a  reasonably  safe  place  dangerous,  or 
an  obviously  dangerous  place  safe,  was  not,  as  a  matter  of  law,  when  in- 
jured by  its  condition  injured  by  a  risk  incident  to  his  employment.  Chicago, 
R.  I.  &  P.  Ry.  Co.  v.  Townes,  143  P.  680,  43  Okl.  568. 

62  Kansas  City,  M.  &  O.  Ry.  Co.  v.  Roe  (Okl.)  180  P.  371. 

In  an  action  under  the  federal  Employers'  Liability  Act  (U.  S.  Comp.  St. 
§§  8657-8665),  where  all  the  evidence,  including  that  of  plaintiff,  showed  a 

(708) 


Art. 3)  ISSUES   AND   TRIAL.  THEREOF  §§   807-808 

Whether  an  injured  party  has  exercised  ordinary  care  to  prevent 
or-lessen  his  damage  is  a  question  of  fact.63 

§  808.    Agency 

Under  conflicting  evidence  on  the  question  of  agency,  such  ques- 
tion is  for  the  jury,84  as  is  also  the  extent  of  the  agent's  authority.65 

clear  case  of  assumption  of  risk,  it  is  improper  to  deny  motion  for  directed 
verdict.     Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Jackson,  61  Okl.  146,  160  P.  736. 

In  an  action  for  injuries  to  an  employs  of  an  interstate  carrier,  where  the 
evidence  was  undisputed,  and  the  injury  did  not  result  from  a  violation  of 
the  safety  act,  the  employees  assumption  of  risk  is  a  question  of  law.  St. 
Louis  &  S.  F.  R.  Co.  v.  Snowden,  48  Okl.  115,  149  P.  1083. 

In  action  under  federal  Employers'  Liability  Act,  where  evidence  is  un- 
disputed and  injury  is  not  caused  by  any  violation  of  state  statutory  pro- 
visions for  protection  of  employes,  assumption  of  risk  is  a  question  of  law; 
Const,  art.  23,  §  6,  not  applying.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Hessenflow 
(Okl.)  170  P.  1161. 

Under  Const,  art.  23,  §  6,  whether  the  risk  is  an  ordinary  risk  of  employ- 
ment under  federal  Employers'  Liability  Act,  or  is  an  ordinary  risk  known 
to  servant  or  with  knowledge  of  which  he  is  chargeable  is  for  the  jury. 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Ward  (Okl.)  173  P.  212,  certiorari  granted  39 
S.  Ct.  10,  248  U.  S.  555,  63  L.  Ed.  - — . 

Under  federal  Employers'  Liability  Act,  the  questions  whether  an  employe" 
becomes  aware  of  employer's  negligence  and  risks  arising  therefrom,  or  wheth- 
er the  danger  is  so  obvious  that  one  of  ordinary  prudence  under  circumstances 
would  have  realized  it,  are  for  the  jury.  Wichita  Falls  &  N.  W.  Ry.  Co.  v. 
Davern  (Okl.)  177  P.  909. 

ss  Blake  v.  Atlas  Supply  Co.,  51  Okl.  426,  152  P.  81. 

64  Iowa  Dairy  Separator  Co.  v.  Sanders,  140  P.  406,  40  Okl.  656;  Central 
Mortgage  Co.  v.  Michigan  State  Life  Ins.  Co.,  143  P.  175,  43  Okl.  33 ;  Brow- 
nell  v.  Moorehead  (Okl.)  165  P.  408;  Massachusetts  Bonding  &  Ins.  Co.  v. 
Vance  (Okl.)  180  P.  693 ;  Leasure  v.  Hughes  (Okl.)  178  P.  696. 

The  apparent  authority  of  an  agent  is  for  the  jury  under  all  the  facts  and 
circumstances  shown.  St.  Louis  Cordage  Mills  v.  Western  Supply  Co.,  54  Okl. 
757,  154  P.  646 ;  Reeves  &  Co.  v.  Phillips,  53  Okl.  375,  156  P.  1179. 

Question  of  agency  is  to  be  determined  by  jury  upon  all  facts  and  circum- 
stances connected  with  transaction,  under  proper  instructions  as  to  the  law. 
Emerson-Brantingham  Implement  Co.  v.  Ritter  (Okl.)  170  P.  482. 

Where,  in  a  guardian's  action  on  a  note,  purchasers  thereof  from  a  third 
person  to  whom  the  note  had  been  entrusted  for  sale  intervened,  claiming  to 
own  the  note,  and  the  evidence  was  conflicting,  held,  that  whether  such  third 
person  was  agent  of  plaintiff  or  of  the  interveners  was  for  the  jury.  Case  v. 
Posey,  55  Okl.  163,  154  P.  1165. 

es  Massachusetts  Bonding  &  Ins.  Co.  v.  Vance  (Okl.)  180  P.  693;  Central 
Mortgage  Co.  v.  Michigan  State  Life  Ins.  Co.,  143  P.  175,  43  Okl.  33. 

Question  of  extent  of  agent's  authority  is  to  be  determined  by  jury  upon 
all  facts  and  circumstances  connected  with  transaction,  under  proper  instruc- 
tions as  to  the  law.  Emerson-Brantingham  Implement  Co.  v.  Ritter  (Okl.)  170 
P.  482. 

(709) 


§§  808-809  TRIAL  (Ch.  13 

That  one  purports  to  act  as  agent  for  another,  stating  at  the 
time  that  he  is  the  agent,  is  not  sufficient  evidence  on  which  to 
submit  the  question  of  agency.66 

§  809.    Will  contest 

Under  conflicting  evidence  in  a  will  contest,67  the  due  execu- 
tion of  the  will,68  testamentary  capacity,69  and  undue  influence  7y 
are  questions  for  the  jury;  but  the  interpretation  of  a  will  is  a 


se  R.  p.  Smith  Sons  &  Co.  v.  Raines  Dry  Goods  Co.,  130  P.  133,  37  Okl.  39. 

67  in  determining  whether  the  evidence  of  contestants  in  a  will  contest  is 
sufficient  to  require  submission  tA  the  jury,  the  same  rule  applies  as  in  ordi- 
nary civil  cases,  so  that  all  the  evidence  in  favor  of  contestants  must  be  taken 
as  true,  and  all  contradictory  evidence  disregarded,  and,  if  there  is  any  sub- 
stantial evidence  tending  to  prove  contestants'  case,  it  must  be  submitted  to 
the  jury.    In  re  Arnold's  Estate,  82  P.  252,  147  Cal.  583. 

Where  on  the  first  appeal  the  evidence  was  held  insufficient  to  warrant  de- 
uyiiig  probate,  and  the  contestant  on  the  second  trial  introduced  no  further 
evidence,  direction  of  verdict  for  the  proponent  was  proper.  In  re  Stone's  Es- 
tate, 174  Cal.  778,  164  P.  643. 

68  In  re  Cullberg's  Estate,  169  Cal.  365,  146  P.  888. 
ealn  re  Dole's  Estate,  81  P.  534,  147  Cal.  188. 

A  finding  of  testamentary  incapacity  will  not  be  disturbed,  where  it  Is  rea- 
sonably supported  by  evidence.  Bilby  v.  Stewart,  55  Okl.  767,  153  P.  1173. 

The  evidence  presented  by  will  contestants  should  be  viewed  most  favorably 
to  them,  and  all  contradictory  testimony  disregarded  before  directing  a  non- 
suit. In  re  Ross'  Estate,  159  P.  603,  173  Cal.  178.  Testator's  testamentary  ca- 
pacity held  a  jury  question  where  he  died  9  days  after  making  the  will,  was 
86  years  old,  had  suffered  two  paralytic  strokes,  and  was  unable  to  remember 
or  carry  on  a  connected  conversation.  Id. 

TO  in  re  Daly's  Estate,  114  P.  787,  15  Cal.  App.  329;  In  re  Welch's  Will,  91 
P.  336,  6  Cal.  App.  44. 

The  court  has  no  authority  to  grant  a  nonsuit  except  in  the  cases  specified 
in  Code  Civ.  Proc.  §  581,  which  does  not  include  the  withdrawal  from  the  jury 
of  an  issue  of  undue  influence,  in  a  will  contest,  for  alleged  lack  of  sufficient 
evidence  to  support  it.  In  re  Higgins'  Estate,  104  P.  6,  156  Cal.  257;  In  re 
Caspar's  Estate,  155  P.  631,  172  Cal.  147;  In  re  Flint's  Estate,  179  Cal.  552, 
177  P.  451. 

Where  there  is  no  evidence  which  would  justify  a  finding  that  undue  influ- 
ence was  exercised  in  procuring  the  execution  of  a  will  such  issue  should  not 
be  submitted  to  the  jury,  since  the  presumption  of  undue  influence  is  not  raised 
by  proof  of  interest  and  opportunity  alone.  In  re  Nelson's  Estate,  64  P.  294, 
132  Cal.  182. 

That  the  jury  in  a  will  contest  did  not  find  against  proponents  on  the  is- 
sue whether  the  will  was  procured  by  fraud  did  not  preclude  it  from  con- 
sidering evidence  of  fraud  as  bearing  on  the  issue  of  undue  influence.  In  re 
Snowball's  Estate,  107  P.  598,  157  Cal.  301. 

(710) 


Art.  3)  ISSUES  AND   TRIAL  THEREOF  §§   809-811 

matter  of  law,  to  be  determined  from  the  language  used  and  the 
facts  and  circumstances  in  proof.71 

Where  an  application  for  the  probate  of  a  will  is  contested  and 
tried  before  a  jury  ultimate  facts  only  for  the  jury's  finding,  as  to 
whether  decedent  was  competent  to  make  a  will,  and  whether  his 
mind  was  free  from  fraud,  should  be  submitted,  and  not  mere  evi- 
dentiary facts,  from  which  the  court  is  required  to  reach  a  conclu- 
sion as  a  matter  of  law.72 

§  810.    Malicious  prosecution 

In  an  action  for  malicious  prosecution,  what  constitutes  probable 
cause  is  a  question  of  law  for  the  court; 73  but  whether  certain  facts 
necessary  to  constitute  probable  cause  exist  is  for  the  jury.74 

§  811.    Libel  and  slander 

Whether  a  publication  is  libelous  or  privileged  is  for  the  court, 
where  the  language  used  is  clear  and  the  facts  relative  thereto  are 
uncontroverted.75 

,  Whether  a  fact  which  gives  a  publication  a  privileged  character 
claimed  for  it  is  established  by  evidence  is  for  the  jury,  and  where 
evidence  is  conflicting  court  may  instruct  as  to  facts  constituting  a 
conditionally  privileged  communication,  and  leave  jury  to  find 
whether  those  facts  are  proven.76 

71  In  re  Seay's  Estate,  180  Cal.  304,  181  P.  58. 

72  In  re  Benton's  Estate,  63  P.  775,  131  Cal.  472. 

78  Ball  v.  Rawles,  28  P.  937,  93  Cal.  222,  27  Am.  St.  Kep.  174;  Lacey  v.  Por- 
ter, 37  P.  635,  103  Cal.  597;  Bell  v.  Keepers,  14  P.  542,  37  Kan.  64;  Hopkins  v. 
Stites  (Okl.)  173  P.  449 ;  Goad  v.  Brown  (Okl.)  175  P.  767 ;  Robberson  v.  Gib- 
son, 62  Okl.  306,  162  P.  1120;  Dunnington  v.  Loeser,  48  Okl.  636,  149  P.  1161, 
rehearing  denied  48  Okl.  636,  150  P.  874 ;  Eastin  v.  Stockton  Bank,  4  P.  1106, 
66  Cal.  123,  56  Am.  Rep.  77;  Fulton  v.  Onesti,  6  P.  491,  66  Cal.  575;  Smith  v. 
Liverpool  &  London  &  Globe  Ins.  Co.,  40  P.  540,  107  Cal.  432;  Seabridge  v. 
McAdam,  41  P.  409,  108  Cal.  345 ;  Parli  v.  Reed,  2  P.  635,  30  Kan.  534 ;  Mi- 
chael v.  Matson,  105  P.  537,  81  Kan.  360,  L.  R,  A.  1915D,  1. 

T*  Drumm  v.  Cessnurn,  58  Kan.  331,  49  P.  78;  Atchison,  T.  &  S.  F.  R.  Co. 
v.  Smith,  55  P.  272,  60  Kan.  4;  Hess  v.  Oregon  German  Baking  Co.,  49  P.  803, 
31  Or.  503. 

"  Spencer  v.  Minnick,  139  P.  130,  41  Okl.  613. 

Whether  the  published  article  is  libelous  per  se  is  a  question  of  law  for  the 
court.  McKenney  v.  Carpenter,  141  P.  779,  42  Okl.  410. 

Where  a  publication  is  conditionally  privileged,  it  is  a  matter  of  law  for  the 
court  to  determine  whether  there  is  any  evidence  of  malice,  and,  if  there  is 
none,  to  direct  the  verdict  for  defendant.  Tuohy  v.  Halsell,  128  P.  126,  35 
Okl.  61,  ^3  L.  R.  A.  (N.  S.)  323,  Ann.  Cas.  1916B,  1110. 

76  Bland  v.  Lawyer-Cuff  Co.  (Okl.)  178  P.  885. 

Where  there  is  no  dispute  as  to  what  the  publication  was,  when  or  about 

(711) 


§§811-812  TRIAL  (Ch.  13 

Where  the  defamatory  words  are  not  actionable  per  se,  the  court 
must  construe  the  words,  and  the  jury  must  determine  the  intent.77 
It  is  the  duty  of  the  court  to  determine  whether  the  language  used 
in  the  publication  can  fairly  or  reasonably  be  construed  to  have  the 
meaning  imputed  to  it  in  the  petition;78  but  where  the  evidence 
wholly  fails  to  connect  any  of  the  defendants  by  positive  testimony 
with  acts  charged,  demurrer  to  evidence  should  have  been  sus- 
tained.79 

§  812.     Weight  of  evidence  and  credibility  of  witnesses 

The  weight  and  sufficiency  of  evidence  80  and  the  credibility  of 
witnesses,  where  the  evidence  is  conflicting,  are  for  the  jury,81 

what  it  was  made,  and  the  language  is  unambiguous,  the  question  Whether 
the  publication  was  privileged  was  for  the  court.  Cobb  v.  Oklahoma  Pub.  Co., 
140  P.  1079,  42  Okl.  314.  Under  conflicting  evidence  in  an  action  for  libel  for 
publishing  a  report  of  proceedings,  held  not  error  to  submit  to  the  jury  wheth- 
er the  report  was  fair  or  made  with  malicious  intent,  and  whether  plaintiff 
was  falsely  charged  with  crime.  Id. 

Where  there  is  no  dispute  as  to  the  circumstances  under  which  a  publica- 
tion was  made,  the  question  whether  the  occasion  was  privileged  is  for  the 
court,  but,  if  the  facts  giving  the  publication  a  privileged  character  are  es- 
tablished by  evidence,  the  question  is  for  the  jury  under  an  instruction  as  to 
what  facts  constitute  privilege.  Hubbard  v.  Cowling,  129  P.  714,  36  Okl.  603. 

Where  the  language  of  an  alleged  libel  is  clear  and  unambiguous,  and  the 
facts  are  uucontroverted  with  reference  to  whether  or  not  it  was  libelous,  or 
its  publication  privileged,  such  questions  are  for  the  court  and  not  the  jury. 
Bodine  v.  Times-Journal  Pub.  Co.,  110  P.  1096,  26  Okl.  135,  31  L.  R.  A.  (N.  S.j 
147. 

In  an  action  for  libel  under  Rev.  Laws  1910,  §  4959,  evidence  held  to  require 
submission  of  case  to  jury.  Dawkins  v.  Billingsley  (Okl.)  172  P.  69,  12  A.  L. 
R.  144. 

77  Phoenix  Printing  Co.  v.  Robertson,  80  Okl.  191,  195  P.  487. 

78  Kee  v.  Armstrong,  Byrd  &  Co.,  75  Okl.  84;  182  P.  494,  5  A.  L.  R.  1349. 

79  Hall  v.  Taylor,  59  Okl.  207,  158  P.  373. 

so  Missouri,  K.  &  T.  R.  Co.  v.  L.  A.  Watkins  Merchandise  Co.,  92  P.  1102,  76 
Kan.  813 ;  Strickler  v.  Gitchel,  78  P.  94,  14  Okl.  523 ;  Silverwood  v.  Carpenter, 
51  Okl.  745,  152  P.  381. 

If  it  is  necessary  for  the  court  to  weigh  the  evidence  and  the  facts  are  such 
that  reasonable  minds  might  disagree,  it  is  a  question  for  the  jury.  Farmers' 
Nat.  Bank  of  Tecumseh  v.  McCall,  106  P.  866,  25  Okl.  600,  26  L.  R.  A.  (N.  S.) 
£17. 

si  Silverwood  v.  Carpenter,  51  Okl.  745,  152  P.  381;  Folley  v.  Chicago,  R.  I. 
&  P.  Ry.  Co.,  84  P.  1090,  16  Oki.  32;  Quapaw  Mining  Co.  v.  Cogburn,  78  Okl. 
227,  ICO  P.  416. 

Where  the  only  testimony  is  that  of  an  interested  party  and  is  inconsistent, 
the  court  should  not  direct  a  verdict.  Moore  v.  First  Nat.  Bank  of  Iowa  City, 

(712) 


Art.  3)  ISSUES   AND  TRIAL   THEREOF  §§   812~813 

regardless  of  the  fact  that  the  larger  number  of  witnesses  testified 
for  one  side.82 

Where  different  persons  might  reasonably  draw  different  in- 
ferences from  undisputed  facts,  the  proper  inference  is  a  question 
of  fact  for  the  jury.83 

It  is  the  province  of  a  jury  to  decide  upon  what  facts  have  been 
proven,  but  not  to  decide  upon  what  an  admitted  fact  tends  to 
prove.84 

§  813.    Uncontroverted  evidence 

The  rule  that  matters  shown  by  uncontroverted  evidence  need 
not  be  submitted  to  the  jury  85  is  not  absolute ;  for,  when  undisput- 

121  P.  626,  30  Okl.  623.  The  credibility  of  witnesses  and  effect  to  be  given  to 
inconsistent  testimony  held  questions  of  fact.  Id. 

It  is  the  duty  of  the  court  to  submit  a  question  of  fact  to  the  jury,  where 
the  evidence  in  regard  thereto  is  conflicting.  Robinson  v.  Lamoureaux,  SO  P. 
595,  71  Kan.  850 ;  Sun  Ins.  Office  of  London  v.  Western  Woolen  Mill  Co.,  82  P. 
513,  72  Kan.  41 ;  Taylor  v.  Insurance  Co.  of  North  America,  105  P.  354,  25  OkL 
92,  138  Am.  St.  Rep.  906. 

Where  issues  of  fact  are  presented  by  the  pleadings  and  supported  by  con- 
flicting evidence  the  case  is  for  the  jury.  Adams  v.  Coon,  129  P.  851,  36  Okl 
644,  44  L.  R.  A.  (N.  S.)  624. 

Where  plaintiff's  evidence  reasonably  tends  to  sustain  the  issues,  and  de- 
fendant's evidence  conflicts  therewith,  the  question  is  for  the  jury.  Gann  v, 
Ball,  110  P.  1067,  26  Okl.  26 ;  Midland  Savings  &  Loan  Co.  v.  Sutton,  30  OkL 
448,  120  P.  1007. 

Questions  raised  between  allegations  in  original  petition  and  testimony  de- 
nying or  explaining  allegations  is  one  of  fact  for  the  jury.  Letcher  v.  Ma- 
loney  (Okl.)  172  P.  972. 

82  Kali  Inla  Coal  Co.  v.  Ghinelli,  55  Okl.  289,  155  P.  606. 

ss  Kemp  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  138  P.  621,  91  Kan.  477. 

An  inference  reasonably,  though  not  necessarily,  deducible  from  the  evi- 
dence, will  not  be  withdrawn  from  the  jury.  Miller  v.  Marriott,  48  Okl.  179, 
149  P.  1164. 

In  suit  for  conversion  by  mortgagee  whose  mortgage,  prior  in  date,  was 
not  witnessed  or  acknowledged,  though  filed,  against  a  junior  mortgagee  who 
properly  recorded  his  mortgage  and  sold  property  and  applied  proceeds  on 
his  debt,  and  who  had  seen  senior  mortgage  on  file,  but  deemed  it  void,  wheth- 
er he  was  not  put  upon  inquiry  which  would  have  shown  prior  mortgage  was 
for  jury,  and  directed  verdict  for  him  was  error.  Blevins  v.  W.  A.  Graham 
Co.  (Okl.)  182  P.  247. 

In  an  action  against  a  carrier  for  negligently  billing  a  shipment  for  a  wrong 
destination,  the  issue  whether  the  agent  of  the  company  was  negligent,  or 
whether  the  shipper  was  negligent  in  failing  to  examine  the  bill  of  lading,  was 
for  the  jury.  Ft.  Smith  &  W.  Ry.  Co.  v.  Harrison,  39  Okl.  1,  133  P.  222. 

s*  Atchison,  T.  &  S.  F.  R.  Co.  v.  Lamoreux,  49  P.  152,  5  Kan.  App.  813. 

ss  Facts  established  by  uncontroverted  evidence  need  not  be  submitted  to 
the  jury  for  finding.  Byers  v.  Ingraham,  51  Okl.  440,  151  P.  1061. 

(713) 


§§  813-815  TRIAL  (Ch.  13 

ed  facts  are  capable  of  more  than  one  reasonable  inference,  the 
question  is  for  the  jury.86  , 

Even  though  testimony  is  undisputed  it  should  be  so  convincing 
that  all  reasonable  men  must  draw  same  conclusion  from  facts 
proven  before  the  court  can  sustain  a  demurrer  to  the  evidence  or 
direct  verdict.87 

§  814.     Motions  and  demurrer 

Where  at  the  close  of  all  the  evidence  the  defendant  demurs  to 
the  plaintiff's  evidence,  the  demurrer  will  be  treated  as  a  motion  to 
direct  a  verdict  in  the  defendant's  favor.88 

A  motion  for  a  nonsuit  is  in  effect  but  a  demurrer  to  the  evi- 
dence.89 

A  motion  to  withdraw  a  case  from  the  jury  and  render  judgment 
for  the  plaintiff  upon  all  the  evidence  presents  to  the  court  the 
same  question  as  a  motion  to  direct  the  verdict  in  favor  of  the 
moving  party,  and  this  should  be  dorie  where  the  party  on  whom 
rests  the  burden  of  proof  has  wholly  failed  to  present  any  evidence 
to  support  his  case,  and  there  are  no  disputed  facts  for  the  jury 
to  pass  upon.90 

A  motion  to  direct  a  verdict  in  favor  of  the  defendant  is  substan- 
tially equivalent  to  a  demurrer  to  the  plaintiff's  evidence.91 

§  815.     Demurrer  to  evidence 

When  the  party  on  whom  rests  the  burden  of  proof  has  closed 
his  evidence,  the  adverse  party  may  interpose  a  demurrer  thereto 
upon  the  ground  that  no  cause  of  action  or  defense  is  proved.92 
A  demurrer  in  the  language  of  the  statute  is  sufficient.93 

so  Waldrep  v.  Exchange  State  Bank  (Okl.)  197  P.  509. 

87  City  of  Durant  v.  Allen  (Okl.)  168  P.  205. 

A  demurrer  to  the  evidence  will  not  be  sustained,  nor  will  a  verdict  be  di- 
rected, unless  the  evidence,  though  undisputed,  is  so  convincing  that  all  rea- 
sonable men  must  draw  the  same  conclusion  from  it.  Rogers  'v.  O.  K.  Bus  & 
Baggage  Co.,  46  Okl.  289,  148  P.  837,  Ann.  Cas.  1917B,  581. 

Where  defendant  offered  no  evidence  in  rebuttal,  but  denied  plaintiff's  case, 

sschickasha  Inv.  Co.  v.  Phillips,  58  Okl.  760,  161  P.  223;  Nail  v.  State 
(Okl.'  Cr.)  192  P.  592. 

s»  Lyon  v.  Lyon,  39  Okl.  Ill,  134  P.  650. 

00  Frick  v.  Reynolds,  52  P.  391,  6  Okl.  638. 

01  Sullivan  v.  Phenix  Ins.  Co.  of  Brooklyn,  8  P.  112,  34  Kan.  170. 
»2  Rev.  Laws  1910,  §  5002,  subd.  3. 

»s  Hargrove  v.  Bourne,  47  Okl.  484,  150  P.  121. 

(714) 


Aft.  3)  ISSUES   AND  TRIAL  THEREOF  §    815 

A  demurrer  to  the  evidence  will  not  reach  a  misjoinder  8*  or  de- 
fect of  parties.95 

Where  an  answer  contains  several  defenses,  and  at  the  conclu- 
sion of  defendants'  evidence  plaintiff  interposes  a  demurrer  to  the 
evidence,  and  the  court  sustains  it  as  to  one  defense  and  overrules 
it  as  to  the  other,  it  does  not  withdraw  from  the  jury  the  evidence 
applicable  to  the  remaining  defenses.96 

It  is  not  error  to  sustain  a  demurrer  to  the  evidence  on  behalf 
of  a  part  of  the  defendants,  where  there  is  no  evidence  tending  to 
prove  a  cause  of  action  against  them.97 

That  defendant  elicits  from  plaintiff's  witness  at  the  end  of  the 
cross-examination  testimony  in  support  of  the  defense  does  not 
preclude  him  from  challenging  the  sufficiency  of  plaintiff's  testi- 
mony by  demurrer,  or  the  court  from  deciding  whether  plaintiff's 
evidence  was  sufficient  to  establish  a  cause  of  action.98 

It  is  not  error  for  the  trial  court  to  overrule  a  demurrer  to  the 
evidence  where  such  demurrer  does  not  tender  all  of  the  evidence 
in  the  case.99 

In  a  personal  injury  action,  if  the  facts  proved  are  sufficient  to  sus- 
tain a  verdict  upon  a  demurrer  filed  to  the  evidence  by  the  defend- 
ant, it  is  the  duty  of  the  court  to  call  a  jury  to  assess  the  damages,  or 
assess  the  damages  itself.1 

On  a  demurrer  to  plaintiff's  evidence  in  a  personal  injury  action, 
it  is  competent  to  consider  the  entire  conduct  of  the  trial  by  de- 
fendant, its  pleading,  cross-examination  of  witnesses,  and  admis- 
sions; and  if  these,  coupled  with  the  deductions  which  may  be 
drawn  from  the  evidence,  establish  a  responsibility,  the  demurrer 
must  be  -overruled.2 

and  plaintiff's  evidence  was  such  that  men  of  ordinary  intelligence  might 
draw  different  conclusions  direction  of  verdict  for  plaintiff  was  error.  Re- 
serve Loan  Life  Ins.  Co.  v.  Isom  (Okl.)  173  P.  841. 

94  Groenmiller  v.  Kaub,  73  P.  100,  67  Kan.  844. 

as  Larimore  v.  Miller,  96  P.  852,  78  Kan.  459. 

96  Troutman  v.  Behoteguy,  76  P.  446,  69  Kan.  176. 

»7  Barnes  v.  Davis,  30  Okl.  511,  120  P.  275. 

»8  Arnold  v.  C.  Hoffman  &  Son  Milling  Co.,  143  P.  413,  93  Kan.  54. 

99  City  of  Oklahoma  City  v.  Welsh,  41  P.  598,  3  Okl.  288. 

i  Pitman  v.  City  of  El  Reno,  37  P.  851,  2  Okl.  414,  judgment  reversed  Pitt- 
man  v.  Same,  46  P.  495,  4  Okl.  638. 

a  Shawnee  Light  &  Power  Co.  v.  Sears,  95  P.  449,  21  Okl.  13. 

(715) 


§§  815-816  TRIAL  (Ch.  13 

Where  one  is  sued  on  a  note  and  on  the  trial  fails  to  prove  any  de- 
fense, a  demurrer  to  his  evidence  should  be  sustained  and  judgment 
rendered  for  plaintiff.8 

§  816.    Effect  as  admission 

A  demurrer  to  the  evidence  admits  all  facts  which  the  evidence 
tends  to  establish  and  all  reasonable  inferences  therefrom,4  in- 
cluding legal  presumptions  and  admissions,  either  in  the  pleadings 
or  otherwise,5  and  withdraws  unfavorable  evidence  adduced  by  the 
demurrant.6 

3  Willoughby  v.  Ball,  90  P.  1017,  18  Okl.  535. 

*  D'Yarmett  v.  Cobe,  51  Okl.  113,  151  P.  589;  McKone  v.  McConkey,  77  Old. 
3,  185  P.  520;  Wm.  Cameron  &  Co.  v.  Henderson,  140  P.  404,  40  Okl.  648; 
Crow  v.  Crow,  139  P.  122,  40  Okl.  455;  Midland  Valley  R.  Co.  v.  Larson,  138 
P.  173,  41  Okl.  360 ;  Sartain  v.  Walker,  60  Okl.  258,  159  P.  1096;  Ft.  Smith  &  W. 
R.  Co.  v.  Knott,  60  Okl.  175, 159  P.  847 ;  Midland  Valley  R.  Co.  v.  Ogden,  60  Okl. 
74,  159  P.  256;  Rose  v.  Woldert  Grocery  Co.,  54  Okl.  566,  154  P.  531;  Marshall 
Mfg.  Co.  v.  Dickerson,  55  Okl.  188,  155  P.  224;  Helm  v.  Mickleson  (Okl.)  170 
P.  704;  Felt  v.  Westlake  (Okl.)  174  P.  1041;  St.  Louis  &  S.  F.  R,  Co.  v.  Snow- 
den,  48  Okl.  115,  149  P.  1083;  Miller  v.  Marriott,  48  Okl.  179,  149  P.  1164; 
J.  I.  Case  Threshing  Mach.  Co.  v.  Rennie  (Okl.)  177  P.  548 ;  Anthony  v.  Bliss, 
39  Okl.  237,  134  P.  1122;  Ziska  v.  Ziska,  95  P.  254,  20  Okl.  634,  23  L.  R.  A.  (N. 
S.)  1 ;  Shawnee  Light  &  Power  Co.  v.  Sears,  95  P.  449,  21  Okl.  13;  Anderson  v. 
Kelly,  57  Okl.  109,  156  P.  1167;  Wolf  v.  Washer,  4  P.  1036,  32  Kan.  533; 
Christie  v.  Barnes,  6  P.  599,  33  Kan.  317 ;  Beutel  v.  Standou,  7  Kan.  App.  813. 
53  P.  836;  Jaffray  v.  Wolf,  1  Okl.  312,  33  P.  945;  Myers  v.  First  Presbyterian 
Church  of  Perry,  69  P.  874,  11  Okl.  544 ;  Edmisson  v.  Drumm-Flato  Commis- 
sion Co.,  73  P.  958,  13  Okl.  440;  (1905)  Conklin  v.  Yates,  83  P.  910,  16  Okl.  266; 
Mentze  v.  Rice,  172  P.  516,  102  Kan.  855 ;  Smith  v.  Rockett,  79  Okl.  244,  192 
P.  691 ;  Kline  v.  Kollman,  79  Okl.  179,  192  P.  208 ;  Boatman  v.  Coverdale,  80 
Okl.  9,  193  P.  874 ;  Singer  v.  Citizens'  Bank  of  Headrick,  79  Okl.  267,  193  P.  41. 

A  demurrer  by  defendant  to  the  evidence  admits  the  truth  of  all  the  evi- 
dence offered  on  the  part  of  plaintiff,  together  with  such  inferences  and  con- 
clusions as  may  reasonably  be  drawn  therefrom.  Flesher  v.  Callahan,  122  P. 
489,  32  Okl.  283. 

It  is  only  where  the  evidence  and  all  the  inferences  therefrom  are  insuffi- 
cient to  support  a  verdict  for  plaintiff  that  demurrer  thereto  can  properly  be 
sustained.  Petroleum  Iron  Works  Co.  v.  Bullington,  61  Okl.  311,  161  P.  538. 

The  test  on  demurrer  to  evidence  is  that  all  the  facts  which  the  evidence 
tends  to  prove  and  reasonable  inferences  therefrom,  are  admitted,  and  court 
cannot  weigh  conflicting  evidence,  but  must  treat  as  withdrawn  that  which  is 
most  favorable  to  demurrant.  Rawlings  v.  Ufer,  61  Okl.  299,  161  P.  183. 

B  Bean  v.  Rumrill  (Okl.)  172  P.  452. 

e  Lyon  v.  Lyon,  39  Okl.  Ill,  134  P.  650. 

Under  the  provisions  of  St.  1890  relative  to  procedure,  where  defendant  de- 
murs to  the  evidence,  only  such  evidence  as  tends  to  make  out  plaintiff's  case 


Art.  3)  ISSUES  AND   TRIAL  THEREOF  §   817 

§  817.     What  rulings  proper 

A  demurrer  to  the  evidence  should  be  sustained  where  all  the 
evidence  and  inferences  deducible  therefrom  would  not  support  a ' 
judgment  for  the  adverse  party.7 

can  beiconsidered,  and  defendant's  evidence  must  be  regarded  as  withdrawn. 
Jaffray  v.  Wolf,  4  Okl.  303,  47  P.  496. 

On  a  demurrer  to  evidence  only  evidence  favorable  to  the  demurree  is  con- 
sidered. Smith  v.  Rockett,  79  Okl.  244,  192  P.  691 ;  Missouri  Can  Co.  v.  Ross, 
83  P.  616,  72  Kan.  669. 

7  Hargrove  v.  Bourne,  47  Okl.  484,  150  P«  121;  Grossman  Co.  v.  White,  52 
Okl.  117,  152  P.  816;  Duncan  v.  Keechi  Oil  &  Gas  Co.,  75  Okl.  98,  181  P.  709; 
Vinita  Electric  Light,  Ice  &  Power  Co.  v.  Carpenter,  46  Okl.  561,  149  P.  126 ; 
Remarkis  v.  Reid,  64  Okl.  104,  166  P.  728;  Burton  v.  Doyle  (Okl.)  165  P.  169; 
Bell  v.  Lynde-Bowman  Darby  Co.,  38  Okl.  172,  132  P.  477 ;  Eoff  v.  Lair  (Okl.) 
156  P.  185;  Farmers'  State  Bank  of  Jefferson  v.  Jordon,  61  Okl.  15,  160  P.  53; 
New  York  Plate  Glass  Ins.  Co.  v.  Wright,  61  Okl.  47,  160  P.  54;  Kiff  v.  At- 
chison,  T.  &  S.  F.  R.  Co.,  4  P.  401,  32  Kan.  263;  Gollober  v.  Lindner,  53  P. 
774,  7  Kan.  App.  812;  Archer  v.  United  States,  60  P.  268,  9  Okl.  569;  Schump 
Land  Co.  v.  Probst,  139  P.  1024,  92  Kan.  103 ;  Shawnee  Fire  Ins.  Co.  v.  Thomp- 
son &  Rowell,  30  Okl.  466,  119  P.  985. 

In  an  action  to  foreclose  a  mortgage  after  the  death  of  the  makers,  where 
the  guardian  ad  litem  of  the  defendant  minor  heirs  of  the  makers  files  a  gen- 
eral denial,  and  the  only  evidence  is  that  of  the  execution  of  the  note  and 
mortgage,  it  is  error  to  overrule  a  demurrer  to  the  evidence.  Sims  v.  Hedges, 
123  P.  155,  32  Okl.  683. 

Where  a  petition,  in  a  widow's  action  for  death  of  her  husband,  alleged  that 
no  administrator  had  been  appointed  and  plaintiff  offered  no  proof  thereof, 
it  was  error  to  overrule  defendant's  demurrer  to  the  evidence.  Frederick  Cot- 
ton Oil  &  Mfg.  Co.  v.  Clay,  50  Okl.  123,  150  P.  451. 

In  action  for  breach  of  oral  contract  to  put  down  well  and  to  furnish  cas- 
ings, etc.,  where  petition  showed  cause  of  action  was  barred,  and  did  not  al- 
lege written  acknowledgment  of  liability  within  limitations,  held,  that  over- 
ruling of  demurrer  to  evidence  was  error.  Froage  v.  Webb  (Okl.)  165  P.  150. 

In  action  by  Indian  for  possession  of  certain  realty  claimed  under  and 
through  plaintiff's  security  deed  and  to  cancel  instruments  in  writing  alleged 
to  cloud  plaintiff's  title  held,  in  view  of  Rev.  Laws  1910,  §§  1156,  1158,  relat- 
ing to  security  deeds  and  notice  that  the  sustaining  of  a  demurrer  to  plaintiff's 
evidence  was  error.  Armstrong  v.  Phillips,  76  Okl.  192,  181  P.  715. 

Where  plaintiff  sued  for  negligent  injuries,  alleging  two  causes  of  action, 
one  of  which  was  for  willful  and  wanton  negligence,  and  the  evidence  failed 
to  show  willfulness  or  wantonness,  a  demurrer  to  the  evidence  as  to  that  cause 
of  action  was  improperly  overruled.  Whitman  v.  Atchison,  T.  &  S.  F.  Ry.  Co., 
116  P.  234,  85  Kan.  150,  34  L.  R.  A.  (N.  S.)  1029,  Ann.  Cas.  1912D,  722. 

None  of  the  testimony  given  for  plaintiffs,  in  an  action  to  hold  defendant 
liable  for  work  done  by  them,  being  substantially  inconsistent  with  their  other 
testimony  that  they  were  subcontractors  of  one  who,  to  their  knowledge,  was 
an  independent  contractor  for  doing  the  work  for  defendant,  a  demurrer  to 

(717) 


§  817  TRIAL  (Ch.  13 

When  a  party  upon  whom  rests  the  burden  of  the  issues,  upon 
a  trial  introduces  evidence  which,  uncontroverted,  establishes  a 
cause  of  action  in  his  favor,  and  then  proceeds  to  introduce  evidence 
which  prima  facie  defeats  his  cause  of  action,  and  then  rests  his 

the  evidence  was  properly  sustained.  Carter  v.  Prairie  Oil  &  Gas  Co-,  104  P. 
563,  80  Kan.  792. 

In  action  against  drawee  bank,  buyer,  and  its  agent  to  recover  price  of  cer- 
tain hogs,  evidence  held  insufficient  to  entitle  plaintiff  to  recover  against  the 
bank  and  the  buyer,  so  that  its  demurrer  to  the  evidence  was  properly  sus- 
tained. Schenbeck  v.  First  Nat.  Bank  (Okl.)  169  P.  619,  L.  R.  A.  1918B,  1066. 

Where  the  question  to  be  determined  was  whether  a  sale  of  wheat  was  ac- 
companied by  immediate  delivery  and  change  of  possession,  and  there  was  no 
evidence  from  which  it  could  be  fairly  inferred  that  any  open  positive  change 
ever  took  place,  and  there  was  no  such  evidence  of  delivery  as  the  circum- 
stances of  the  case  would  reasonably  allow,  the  court,  on  demurrer  to  the  evi- 
dence, was  bound  to  hold  it  as  a  matter  of  law  that  the  attempted  sale  was 
fraudulent  as  to  the  creditors  of  the  vendor.  Walters  v.  Ratliff,  61  P.  1070, 
10  Okl.  262. 

In  suit  to  set  aside  for  insufficient  delivery,  a  deed  delivered  to  third  person 
for  delivery  to  grantees  at  death  of  grantor,  where  at  grantor's  death  deed 
was  turned  over  to  grantees  and  administratrix  of  grantor,  who  placed  it  of 
record,  demurrer  to  evidence  was  properly  sustained.  Shaffer  v.  Smith,  53 
Okl.  352,  156  P.  1188. 

Where  a  petition  in  an  action  for  the  recovery  of  money  alleged  that  de- 
fendant appropriated  it  to  his  own  use,  and  the  evidence  does  not  reasonably 
tend  to  show  such  appropriation,  it  is  not  error  to  sustain  a  demurrer  there- 
to. Norman  v.  Groves,  97  P.  561,  22  Okl.  98. 

In  stockholder's  action  to  enjoin  other  stockholders,  and  for  a  receivership 
and  a  winding  up  of  the  corporation,  demurrer  to  plaintiff's  evidence  held 
properly  sustained.  Bell  v.  Northrop-Bell  Oil  &  Gas  Co.  (Okl.)  171  P.  1115. 

In  an  action  for  damages  by  a  wife  against  her  husband's  parents  for  alien- 
ating her  husband's  affections,  evidence  that  defendants  gave  their  sou  a 
home,  but  refused  the  same  to  plaintiff;  that  they  had  both  told  her,  in  her 
husband's  presence,  that  she  was  filthy  and  dirty,  and  unfit  to  raise  a  family; 
and  that  plaintiff's  father-in-law  told  a  third  person,  who  had  given  to  plain- 
tiff a  temporary  home,  that  he  had  been  trying  to  separate  his  son  and  plain- 
tiff for  some  time,  and  had  succeeded,  and  that  now  he  intended  to  keep  them 
apart,  is  insufficient,  as  against  a  demurrer  to  the  evidence.  Sheriff  v.  Sheriff, 
56  P.  960,  8  Okl.  124. 

Where  a  petition  states  a  cause  of  action,  although  plaintiff  is  mistaken  as 
to  amount  of  recovery  to  which  he  is  entitled,  and  his  evidence  reasonably 
tends  to  support  allegations  of  petition,  a  demurrer  to  the  evidence  should 
not  be  sustained.  Deming  Inv.  Co.  v.  Britton  (Okl.)  179  P.  468. 

In  action  for  specific  performance  of  agreement  between  plaintiff's  mother 
and  defendant  that  defendant  and  her  husband  would  take  plaintiff  into  their 
home  and  raise  her  as  their  own  child,  and  that  on  their  death  she  would  in- 
herit as  their  child  as  if  they  died  intestate,  demurrer  to  plaintiff's  evidence 
held  properly  sustained.  Pantel  v.  Bower,  104  Kan.  18,  178  P.  241. 

(718) 


Art.  3)  ISSUES  AND   TRIAL  THEREOF  §  817 

case,  and  the  opposite  party  demurs  to  the  evidence,  it  is  error  for 
the  court  to  overrule  the  demurrer  and  to  render  judgment  in 
favor  of  the  party  who  produced  the  evidence.8 

On  a  demurrer  to  the  evidence,  that  of  the  party  against  whom 
demurrer  is  sought  should  be  given  full  credence  and  considered 
in  the  most  favorable  light.9 

The  court  may  disregard  incompetent  testimony  admitted  over 
proper  objections.10  Conflicting  evidence  cannot  be  weighed.11 
Therefore  a  demurrer  to  the  evidence,  or  a  motion  to  direct  a  ver- 
dict, should  not  be  sustained  where  there  is  any  substantial  con- 
flict in  the  evidence.12 

The  credibility  of  a  witness  cannot  be  considered,13  nor  should 
the  court  determine  which  one  of  several  fair  inferences  may  be 
drawn  from  the  proven  facts.14  The  sufficiency  of  the  evidence,  in 
law,  is  the  only  question.15 

Where  evidence  is  conflicting  it  is  error  to  sustain  a  demurrer  to 
the  evidence,  however  strongly  the  preponderance  may  be  against 

«  Kibby  v.  Gibson,  83  P.  968,  72  Kan.  373. 

9  Maryland  Casualty  Co.  v.  Cherryvale  Gas,  Light  &  Power  Co.,  162  P.  313, 
99  Kan.  563,  L.  R.  A.  1917C,  487;    Starkweather  v.  Dunlap,  103  Kan.  425,  173 
P.  1122 ;   Bushey  v.  Coffman,  173  P.  341,  103  Kan.  209;  Matassarin  v.  Wichita 
R.  &  Light  Co.,  163  P.  796,  100  Kan.  119 ;    Feighley  v.  C.  Hoffman  &  Son  Mill- 
ing Co.,  165  P.  276,  100  Kan.  430. 

Where  the  petition  states  a  cause  of  action  and  the  proof  fairly  sustains 
same,  a  demurrer  to  the  evidence  should  be  overruled.  T.  H.  Rogers  Lumber 
Co.  v.  M.  W.  Judcl  Lumber  Co.,  52  Okl.  387,  153  P.  150. 

10  Fuss  v.  Cocannouer  (Okl.)  172  P.  1077;   Nance  v.  Oklahoma  Fire  Ins.  Co., 
31  Okl.  208,  120  P.  948,  38  L.  R.  A.  (N.  S.)  426;    Felt  v.  Westlake  (Okl.)  174 
P.  1041. 

On  a  demurrer  to  evidence  the  trial  court  may  disregard  incompetent  evi- 
dence. Thorp  Oil  &  Specialty  Co.  v.  Home  Oil  Refining  Co.,  79  Okl.  225,  192 
P.  573 ;  Gillett  v.  Burlington  Ins.  Co.,  36  P.  52,  53  Kan.  108. 

11  Moss  v.  Hunt,  40  Okl.  20,  135  P.  282 ;   Edmisson  v.  Drumm-Flato  Commis- 
sion Co.,  73  P.  958,  13  Okl.  440;    Mottin  v.  Board  of  Com'rs  of  Leaven  worth 
County,  133  P.  165,  89  Kan.  742 ;  Kerr  v.  Kerr,  116  P.  880,  85  Kan.  460 ;  Buoy 
v.  Clyde  Milling  &  Elevator  Co.,  75  P.  466,  68  Kan.  436;   Coon  v.  Atchison,  T. 
&  S.  F.  Ry.  Co.,  89  P.  682,  75  Kan.  282;   Jones  v.  Adair,  91  P.  78,  76  Kan.  343; 
Hennis  v.  Bowers,  100  P.  71,  79  Kan.  463 ;   St.  Louis  &  S.  F.  Ry.  Co.  v.  Toom- 
ey,  49  P.  819,  6  Kan.  App.  410;    Fuller  v  Torson,  56  P.  512,  8  Kan.  App.  652: 
Hyland  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  151  P.  1107,  96  Kan.  432. 

12  Collier  v.  Gannon,  137  P.  1179,  40  Okl.  275. 

is  Terry  v.  Kansas  Gravel  Co.,  143  P.  485,  93  Kan.  125. 
i*  Kerr  v.  Kerr,  116  P.  880,  85  Kan.  460. 

is  Wolf  v.  Washer,  4  P.  1036,  32  Kau.  533;  Coy  v.  Missouri  Pac.  Ry.  Co.,  76 
P.  844,  69  Kan.  321. 

(719) 


§    817  TRIAL  (Ch.  13 

the  party  on  whom  rests  the  burden  of  the  issues  in  the  opinion  of 
the  court.16 

The  demurrer  should  be  overruled,  where  any  question  of  fact  is 
presented.17 

Where  the  declaration  states  a  cause  of  action  in  tort,  and  fails  to 
state  any  facts  sounding  in  contract,  and  the  evidence  fails  to  prove 
the  tort,  but  tends  to  prove  a  right  of  action  on  contract,  the  court 
should  sustain  a  demurrer  to  the  evidence.18 

On  the  other  hand,  judgment  on  the  evidence  should  not  be  ren- 
dered where  a  jury  is  a  matter  of-  right,  and  there  is  evidence  au- 
thorizing submission  of  the  case  to  the  jury.19 

A  demurrer  to  plaintiff's  evidence  should  not  be  sustained  where 
such  evidence  does  not  clearly  disprove  or  fail  to  establish  his 


is  Wingfield  v.  McClintock,  113  P.  394,  85  Kan.  207,  judgment  affirmed  on 
rehearing  116  P.  488,  85  Kan.  452. 

On  a  demurrer  to  evidence,  the  question  of  preponderance  of  evidence  has 
no  bearing.  The  evidence  must  have  failed  utterly  to  prove  the  facts  at  issue. 
Brown  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  1  P.  605,  31  Kan.  1. 

The  court  must  be  able  to  say  as  a  matter  of  law  that  the  party  introducing 
the  evidence  has  not  proved  his  case.  'Conklin  v.  Yates,  83  P.  910,  16  Okl.  266. 

It  is  error  to  sustain  a  demurrer  to  the  evidence  because  of  contradictious 
between  plaintiff's  testimony  in  chief  and  on  cross-examination,  if  there  is 
any  evidence  whatever  to  support  plaintiff's  claim.  Acker  v.  Norman,  84  P. 
531,  72  Kan.  586. 

It  is  error  to  sustain  a  demurrer  to  plaintiff's  evidence  because  it  is  con- 
flicting and  certain  portions  of  plaintiff's  own  testimony  conflict  with  other 
portions  thereof.  Smith  v.  Schriver,  138  P.  584,  91  Kan.  582. 

17  Thurston  v.  Fritz,  138  P.  625,  91  Kan.  468,  50  L.  R.  A.  (N.  S.)  1167,  Ann. 
Gas.  1915D,  212. 

A  demurrer  to  evidence  of  a  partner  that  he  did  not  authorize  his  copartner 
to  sign  the  note  sued  on  is  properly  overruled,  where  such  evidence  has  any 
probative  value  and  tends  to  show  nonliability  of  demurrant.  Exchange  State 
Bank  v.  Jacobs,  156  P.  771,  97  Kan.  798. 

18  Ellis  v.  Flaherty,  70  P.  586,  65  Kan.  621. 

i»  O'Neal  v.  Bainbridge,  146  P.  1165,  94  Kan.  518,  Ann.  Gas.  1917B,  293; 
Wichita  Falls  &  N.  W.  Ry.  Co.  v.  Puckett,  53  Okl.  463,  157  P.  112 ;  Zehr  v. 
Champlin,  60  Okl.  242,  159  P.  1185;  St.  Louis  &  S.  F.  R.  Co.  v.  Akard,  60  Okl. 
4,  159  P.  344 ;  Thorne  v.  Milliken,  57  Okl.  735,  157  P.  914 ;  Rentie  v.  McCoy, 
128  P.  244,  35  Okl.  77;  A  very  v.  Howell,  153  P.  532,  96  Kan.  657;  Lyon  v. 
Lyon,  39  Okl.  Ill,  134  P.  650. 

Where  all  the  evidence  and  the  reasonable  inferences  therefrom  in  defend- 
ant's favor  taken  as  true,  will  warrant  a  verdict  in  his  favor,  it  is  error  to 
sustain  plaintiff's  demurrer  to  such  evidence.  Moppin  v.  Norton,  137  P.  1182, 
40  Okl.  284,  Ann.  Cas.  1915D,  1042. 

(720) 


Art.  3)  ISSUES  AND   TRIAL   THEREOF  §  817 

right  of  recovery.20  It  should  be  overruled,  unless  there  has  been 
a  total  failure  upon  the  part  of  plaintiff  to  prove  a  case,  or  some 
material  fact  in  issue.21 

20  Walsh  v.  Kansas  Fuel  Co.,  137  P.  941,  91  Kan.  310,  50  L.  R.  A.  (X.  S.) 
686;    McCall  Bros.  v.  Farley  &  Skinner,  39  Okl.  389,  135  P.  339;  Mentze  v. 
Rice,  172  P.  516,  102  Kan.  855;    Holmes  v.  Culver,  133  P.  164,  89  Kan.  698; 
Chase  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  79  P.  153,  70  Kan.  546 ;   Davis  v.  Atchi- 
son,  T.  &  S.  F.  Ry.  Co.,  104  Kan.  604,  180  P.  195;    Home  v.  Hegwer  Salt  & 
Lumber  Co.,  35  P.  200,  52  Kan.  617;  Jackson  v.  Uncle  Sam  Oil  Co.  of  Kansas, 
156  P.  756,  97  Kan.  674;  Brownson  v.  Perry,  81  P.  197,  71  Kan.  578;   Mulvane 
v.  Sedgley,  61  P.  971,  10  Kan.  App.  574,  judgment  affirmed  64  P.  1038,  63 
Kan.  105,  55  L.  R.  A.  552;  Hughes  v.  Delautre,  108  P.  803,  82  Kan.  548;  Lew- 
is v.  Harvey,  101  Kan.  673,  168  P.  856;    Bushey  v.  Coffman,  173  P.  341,  103 
Kan.  209. 

A  demurrer  to  the  plaintiff's  evidence  will  not  be  sustained,  where  there  are 
inferences  favorable  to  the  plaintiff.  Singer  v.  Citizens'  Bank  of  Headrick,  79 
Okl.  267,  193  P.  41. 

In  an  action  for  conspiracy  to  defraud  plaintiff  of  his  stock  in  a  bank  and 
oust  him  from  his  position  as  president,  held  that  a  demurrer  to  plaintiff's 
evidence  was  properly  overruled.  Felt  v.  Westlake  (Qkl.)  174  P.  1041. 

In  an  action  for  an  assault,  where  plaintiff  and  one  other  witness  testified 
that  the  assault  was  committed,  a  demurrer  to  evidence  on  the  ground  that 
no  cause  of  action  was  proved  was  properly  overruled.  Willet  v.  Johnson, 
76  P.  174,  13  Okl.  563. 

Where,  in  an  action  for  damages  to  a  shipment  of  sheep  from  delay  in  fur- 
nishing a  car,  the  evidence  reasonably  tended  to  show  that  plaintiff  had  sus- 

21  Brown  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  1  P.  605,  31  Kan.  1;    Gardner  v. 
King,  15  P.  920,  37  Kan.  671 ;  Wilson  v.  Beck,  24  P.  957,  44  Kan.  497. 

A  demurrer  to  evidence  reasonably  sustaining  a  petition  stating  a  cause  of 
action  should  be  overruled.  Missouri,  O.  &  G.  Ry.  Co.  v.  Smith,  55  Okl.  12, 
155  P.  233;  Alexander  Drug  Oo.  v.  O'Dell,  52  Okl.  662,  153  P.  114;  Hess  v. 
Sturdavent,  59  Okl.  239,  158  P.  905;  Sartain  v.  Walker,  60  Okl.  258,  159  P. 
1096 ;  Lisle  v.  Anderson,  61  Okl.  68,  159  P.  278,  L.  R,  A.  1917A,  128 ;  Anoatub- 
by  v.  Pennington,  46  Okl.  221,  148  P.  828;  First  State  Bank  of  Addington  v. 
Latimer,  48  Okl.  104,  149  P.  1099;  Wm.  Cameron  &  Co.  v.  Henderson,  140  P. 
404,  40  Okl.  648;  King  v.  City  of  Parsons,  149  P.  699,  95  Kan.  654;  Horine  v. 
Hammond,  146  P.  1144,  94  Kan.  579 ;  Anderson  v.  Heasley,  148  P.  738,  95  Kan. 
572 ;  Moore  v.  Moore,  150  P.  230,  93  Kan.  697,  96  Kan.  95 ;  Kansas  City,  Ft. 
S.  &  G.  R.  Co.  v.  Foster,  18  P.  285,  39  Kan.  329;  Cargill  Commission  Co.  v. 
Mowery,  161  P.  634,  99  Kan.  389,  judgment  modified  on  rehearing,  162  P.  313, 
99  Kan.  389;  State  v.  Gerhards,  16£  P.  1149,  99  Kan.  462;  Litsch  v.  Kansas 
Gas  &  Electric  Co.,  148  P.  632,  95  Kan.  496 ;  Brown  v.  Cruse,  90  Kan.  306,  133 
P.  865. 

Where  there  is  a  variance  in  the  reply  from  the  cause  of  action  stated  in 
the  petition,  and  the  burden  of  proof  is  on  the  defendant,  and  evidence  is  of- 
fered which  would  sustain  a  partial  defense  to  the  cause  of  action  as  modi- 
fied by  the  reply,  a  demurrer  should  not  be  sustained  to  the  evidence.  Marion 
Mfg.  Co.  v.  Bowers,  80  P.  565,  71  Kan.  260. 

HON.PL.&  PBAC.— 46  (721) 


§§  817-818  TRIAL  (Ch.  13 

A  demurrer  to  the  evidence  should  be  overruled,  where  the  evi- 
dence, with  the  inferences  deducible  therefrom,  is  sufficient  to  sup- 
port a  verdict  for  the  party  offering  same.22 

§  818.    Cure  of  error 

Any  error  in  overruling  demurrer  at  close  of  plaintiff's  case  is 
cured,  where  testimony  introduced  by  defendant  supplies  any  de- 
ficiencies in  testimony  of  plaintiff.23 


tained  the  damages  claimed,  and  that  defendant  unlawfully  caused  same,  a 
demurrer  to  the  evidence  was  properly  overruled.  Midland  Valley  R.  Co.  v. 
Larson,  138  P.  173,  41  Okl.  360. 

In  an  action  by  a  principal  against  his  agent  to  recover  in  part  certain 
commission  alleged  to  have  been  erroneously  paid,  where  on  answer  and  coun- 
terclaim for  the  balance  the  original  action  is  dismissed,  and  the  case  is  tried 
'on  the  counterclaim,  and  the  evidence  of  plaintiff  shows  that  defendant,  while 
his  agent  in  the  purchase  of  lands,  unknown  to  him,  received  a  commission 
from  the  agents  of  the  vendor,  is  a  sufficient  defense  to  the  action  on  the 
counterclaim,  and  a  demurrer  to  such  evidence  was  wrongfully  sustained. 
Plotner  v.  Chillson  &  Chillson,  95  P.  775,  21  Okl.  224,  129  Am.  St.  Rep.  776. 

In  an  action  for  damages  for  the  wrongful  cutting  of  timber  on  plaintiff's 
land,  held,  that  court  properly  overruled  demurrer  to  plaintiff's  evidence. 
Kilgore  v.  Rowland  (Okl.)  172  P.  43. 

In  action  upon  notes  for  balance  due  after  crediting  proceeds  of  chattel 
mortgage,  held,  that  demurrer  to  plaintiff's  evidence  was  improperly  sustain- 
ed, in  view  of  admissions  made  by  demurrer.  J.  I.  Case  Threshing  Mach.  Co. 
v.  Rennie  (Okl.)  177  P.  548. 

In  suit  by  surviving  husband  to  quiet  title,  the  sustaining  of  a  demurrer  to 
his  evidence  was  error,  where  he  testified  that  the  realty  was  purchased  after 
his  marriage  to  defendants'  mother,  and  with  proceeds  of  sale  of  property 
owned  by  him  before  marriage,  excepted  from  antenuptial  contract.  Watson 
v.  Stone  (Okl.)  171  P.  336. 

In  chattel  mortgagee's  action  for  conversion  of  mortgaged  property  then 
in  mortgagor's  possession,  evidence  on  theory  of  a  suit  to  impress  a  trust  on 
proceeds  of  sale  did  not  support  the  cause  of  action,  and  the  overruling  of  a 
demurrer  thereto  was  error.  First  Nat.  Bank  v.  City  Nat.  Bank  of  Welling- 
ton, Tex.  (Okl.)  175  P.  253. 

22  Reynolds  v.  Brooks,  49  Okl.  188,  152  P.  411. 

Unless  the  evidence  and  all  the  justifiable  inferences  are  insufficient  to  sup- 
port a  verdict  for  plaintiff,  it  is  not  error  to  overrule  a  demurrer  thereto. 
Baker-Hanna-Blake  Co.  v.  Paynter-McVicker  Grocery  Co.  (Okl.)  174  P.  265. 

In  replevin  for  possession  of  more  than  one  item  of  property,  if  the  evidence 
supports  plaintiff's  right  to  recover  any  one  item,  a  general  demurrer  to  the 
evidence  is  properly  overruled.  Hamilton  v.  Brown,  31  Okl.  213,  120  P.  950. 

23  Beard  v.  Davis,  57  Okl.  17,  156  P.  631;  Rutledge  v.  Jarvis,  60  Okl.  66,  158 
P.  586 ;   Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Beasley  (Okl.)  168  P.  200. 

Where  demurrer  to  plaintiff's  evidence  was  overruled,  and  defendant  there- 
after offered  eivdence  on  same  points  and  cause  was  submitted  without  ex- 

(722) 


Art.  3)  ISSUES  AND  TRIAL  THEREOF  §    819 

§  819.     Trial  by  court 

A  demurrer  to  the  evidence  may  be  entertained  on  a  trial  by  the 
court  without  a  jury.24 

While  the  statute  does  not  expressly  authorize  a  demurrer  to  evi- 
dence in  cases  tried  to  the  court  without  a  jury,  that  practice  is 
followed  by  the  courts.25 

In  such  case  the  court's  ruling  must  be  tested  by  the  same  rules 
as  obtain  in  jury  cases,  unless  he  sustains  the  demurrer  and  it 
affirmatively  appears  that  he  afterwards  weighed  all  the  evidence 
as  upon  final  submission.26 

In  a  suit  in  equity  tried  to  the  court,  where  there  is  any  evidence 
reasonably  tending  to  establish  plaintiff's  petition,  it  is  error  to 
sustain  a  demurrer  to  the  evidence.27 

ception  to  sufficiency  of  evidence  and  it  sustained  the  judgment,  it  will  not 
be  disturbed.  Glaze  v.  Metcalf  Thresher  Co.  (Okl.)  168  P.  219. 

Where  trial  court  overruled  demurrer  to  plaintiff's  evidence,  and  thereafter 
both  parties  introduced  further  and  additional  evidence  sufficient  to  make  out 
a  case  for  plaintiff,  a  judgment  in  his  favor  will  not  be  disturbed,  though  orig- 
inal evidence  was  insufficient.  Tankersley  v.  Castanien,  63  Okl.  18,  162  P. 
191.  1 

24  Chicago  Lumber  Co.  v.  Merrimack  River  Sav.  Bank,  34  P.  1045,  52  Kan. 
410. 

23  Bailey  v.  Privett,  64  Okl.  56,  166  P.  150. 

Where  trial  is  had  to  the  court,  it  is  not  error  to  weigh  plaintiff's  evidence 
at  the  close  thereof  and  pronounce  judgment  for  defendant.  Tiger  v.  Ward, 
60  Okl.  36,  158  P.  941. 

Court  trying  action  without  a  jury  must  eventually  weigh  testimony  to  de- 
termine where  preponderance  is,  and  may  do  so  at  earliest  possible  time  when 
plaintiff's  rights  will  not  be  thereby  cut  off  or  impaired,  and.  when  plaintiff 
has  put  in  all  his  proof  his  rights  will  not  be  impaired  if  court  then  deter- 
mines what  has  been  proven.  Lowrance  v.  Henry,  75  Okl.  250,  182  P.  489. 

26  Rev.  Laws  1910,  §  5002,  relative  to  demurrers  to  evidence,  does  not  ex- 
pressly authorize  such  demurrer  in  cases  tried  to  the  court,  and  the  judge  in 
such  case  may  decline  to  pass  upon  a  demurrer.    A  demurrer  to  the  evidence, 
in  an  action  for  divorce,  withdraws,  and  requires  the  court  to  ignore,  a  prop- 
osition of  reconciliation  made  by  deniurrant  during  the  trial.    Lyon  v.  Lyon, 
39  Okl.  Ill,  134  P.  650. 

In  considering  a  demurrer  to  evidence  in  an  action  tried  to  the  court,  it 
must  consider  as  true  all  portions  of  the  evidence  tending  to  prove  the  alle- 
gations of  the  petition.  Wehe  v.  Mood,  75  P.  476,  68  Kan.  373. 

In  deciding  a  demurrer  to  plaintiffs'  evidence,  in  a  court  case,  the  court 
cannot  weigh  conflicting  evidence  or  treat  the  case  as  submitted  by  defendant 
on  plaintiffs'  showing,  but  must  consider  as  true  all  the  evidence  tending  to 
prove  the  petition.  Farnsworth  v.  Clarke,  62  P.  655,  62  Kan.  264;  Kerr  v. 
Kerr,  101  P.  647,  80  Kan.  83. 

27  Fish  v.  Sims,  141  P.  980,  42  Okl.  535. 

(723) 


§§  820-822  TRIAL  (Ch.  13 

§  820.    Ruling  and  judgment  sustaining  demurrer 

On  sustaining  a  demurrer  to  the  evidence  the  court  should  speci- 
fy the  defect  in  the  proof  if  an  essential  fact  has  been  omitted  and 
its  view  of  the  law  if  the  controlling  question  be  one  of  law.28  Such 
judgment  as  the  pleadings  and  proof  demand  should  be  rendered 
without  submitting  any  issue  to  the  jury,  since  the  effect  of  the 
demurrer  is  to  refer  to  the  court  the  application  of  the  law  to  the  ad- 
mitted facts.29 

Where  the  court  sustains  a  demurrer  to  the  evidence,  it  may 
properly  withdraw  the  case  from  the  jury  and  render  such  judgment 
for  demurrant  as  the  pleadings  and  proof  may  demand.80 

§  821.     Form 

DEMURRER  TO   EVIDENCE    (ORAL) 

And  now  comes  the  defendant  and  demurs  to  the  evidence  in- 
troduced on  behalf  of  the  plaintiff,  for  the  reason  that  the  matters 
and  facts  shown  in  evidence  by  said  plaintiff  are  not  sufficient  in 
law  to  maintain  the  issue  on  the  part  of  the  plaintiff,  and  are  in- 
sufficient to  support  a  cause  of  action  in  favor  of  plaintiff  and 
against  the  defendant,  and  that  the  defendant  is  not  bound  by  law 
to  answer  the  same. 

§  822.     Direction  of  verdict 

It  is  error  for  the  trial  court,  of  its  own  motion,  to  direct  a  ver- 
dict for  the  plaintiff  before  the  defendant  has  rested  his  case.31 
A  case  must  be  clear  and  certain  to  sustain  a  direction  of  the 
verdict.32  It  is  the  duty  of  the  court  in  directing  a  verdict  to  lay  out 
of  consideration  incompetent  evidence  received  over  objection.33 

The  question  presented  on  a  motion  to  direct  a  verdict  is  whether, 
admitting  the  truth  of  all  the  evidence  in  favor  of  the  party 
against  whom  the  motion  is  directed,  and  the  reasonable  inferences 

as  Holmes  v.  Culver,  133  P.  164,  89  Kan.  698. 

2»  Courtney  v.  Gibson,  52  Okl.  769,  153  P.  677. 

so  Terry  v.  Haynes,  60  Okl.  34,  158  P.  1195. 

si  Williamson  v.  Hollo  way  (Okl.)  172  P.  44. 

32  Damerson  v.  McClaren,  116  P.  792,  29  Okl.  340. 

s  s  Hathaway  v.  Hoffman,  53  Okl.  72,  153  P.  184;  Great  Western  Coal  & 
Coke  Co.  v.  McMahan,  143  P.  23,  43  Okl.  429;  Clinton  Nat.  Bank  v.  McKennon, 
110  P.  649,  26  Okl.  835;  Offutt  v.  Wagoner,  30  Okl.  458,  120  P.  1018. 

(724) 


Art.  3)  ISSUES   AND   TRIAL  THEREOF  §   822 

and  conclusions,  there  is  enough  competent  evidence  to  sustain  ver- 
dict.34 

Where  the  evidence  is  conflicting,  all  facts  and  inferences  in  con- 
flict with  the  evidence  against  which  the  action  is  to  be  taken  must 


s*  Gwinnup  v.  Walton  Trust  Co.  (Okl.)  172  P.  936;  Bowles  v.  Biffles,  50  Okl. 
587,  151  P.  193;  Supreme  Tribe  of  Ben  Hur  v.  Owens,  50  Okl.  629,  151  I'.  I'.ts. 
L.  R.  A.  1916A,  979 ;  Shields  v.  Smith,  50  Okl.  548,  151  P.  207 ;  Wichita  Falls 
&  N.  W.  Ry.  Co.  v.  D.  Cawley  Co.  (Okl.)  172  P.  70 ;  Chickasha  Inv.  Co.  v.  Phil- 
lips, 58  Okl.  760.  161  P.  223;  Homeland  Realty  Co.  v.  Robison,  136  P.  585,  39 
Okl.  591;  Jones  v.  First  State  Bank  of  Bristow,  136  P.  737,  39  Okl.  784 ;  Moore 
v.  First  Nat.  Bank  of  Iowa  City,  121  P.  626,  30  Okl.  623;  St.  Louis  &  S.  F.  R. 
Co.  v.  Posten,  124  P.  2,  31  Okl.  821 ;  T.  S.  Reed  Grocery  Co.  v.  Miller,  128  I*. 
271,  36  Okl.  134. 

In  ruling  on  motion  for  directed  verdict,  all  evidence  unfavorable  to  the 
party  against  whom  the  verdict  is  sought,  as  well  as  incompetent  evidence, 
must  be  disregarded.  Sartain  v.  Walker,  60  Okl.  258,  159  P.  1096;  Buckeye 
Engine  Co.  v.  City  of  Cherokee,  54  Okl.  509,  153  P.  1166 ;  Booker  Tobacco  Co. 
v.  Walker,  38  Okl.  47,  131  P.  537;  Frick-Reid  Supply  Co.  v.  Hunter,  47  Okl. 
151,  148  P.  83 ;  Bank  of  Commerce  of  Ralston  v.  Gaskill,  44  Okl.  728,  145  P. 
1131;  Frisco  Lumber  Co.  v.  JThomas,  142  P.  310,  42  Okl.  670;  Duncan  Cotton 
Oil  Co.  v.  Cox,  139  P.  270,  41  Okl.  633;  Continental  Ins.  Co.  v.  Chance,  48  Okl. 
324,  150  P.  114 ;  Phinnie  v.  Atkinson  (Okl.)  177  P.  Ill ;  Oklahoma  Automobile 
Co.  v.  Goulding  (Okl.)  176  P.  400 ;  Smith  v.  Hutchison  Box  Board  &  Paper  Co., 
101  Kan.  274,  166  P.  484 ;  Kali  Inla  Coal  Co.  v.  Ghinelli,  55  Okl.  289,  155  P. 
606;  Stothard  v.  Junior  Coal  &  Mining  Co.,  160  P.  213,  98  Kan.  756;  Case  v. 
Posey,  55  Okl.  163,  154  P.  1165 ;  Haddock  v.  Sticelber  &  Mong  (Okl.)  165  P. 
1138 ;  Fox  v.  Campbell,  30  P.  479,  49  Kan.  331 ;  Fidelity  Mut.  Life  Ins.  Co. 
v.  Stegall,  111  P.  389,  27  Okl.  151;  Chestnutt-Gibbons  Grocer  Co.  v.  Consum- 
ers' Fruit  Co.,  44  Okl.  318,  144  P.  591 ;  Hanna  v.  Mosher,  98  P.  358,  22  Okl. 
501;  St.  Louis  &  S.  F.  Ry.  Co.  v.  Clampitt,  55  Okl.  686,  154  P.  40;  Abbott  v. 
Dingus,  44  Okl.  567,  145  P.  365 ;  First  State  Bank  of  Addington  v.  Lattimer, 
48  Okl.  104,  149  P.  1099;  Kinney  v.  Grooms,  63  Okl.  164,  163  P.  531;  Gregory 
v.  Harper,  51  Okl.  419,  152  P.  70. 

In  an  action  for  services  rendered  by  attorneys  under  a  written  contract, 
where  defendants  alleged  a  failure  of  consideration,  and  that  the  contract 
had  been  procured  by  false  representations,  and  introduced  evidence  to  sus- 
tain their  pleas,  it  was  error  to  instruct  to  find  for  plaintiff.  Conner  v.  Apple 
&  Franklin,  141  P.  424,  42  Okl.  292. 

Where  plaintiff  in  an  action  against  an  officer  for  an  illegal  attachment 
made  a  prima  facie  showing  of  ownership  and  right  of  possession  of  the  prop- 
erty attached  as  that  of  another,  and  the  attachment  under  which  the  officer 
justified  was  held  void,  it  is  error  to  direct  a  verdict  for  the  oflBcer.  Hagar  v. 
Haas.  71  P.  822,  66  Kan.  333. 

In  an  action  on  a  note,  held,  on  the  evidence,  that  directed  verdict  for  plain- 
tiff against  all  of  the  defendants  was  error;  there  being  some  evidence  to 
sustain  defense  of  certain  of  them.  Phelps  v.  Womack  (Okl.)  167  P.  478. 

Under  the  evidence  in  a  wife's  action  against  her  husband,  held,  that  plain- 
tiff was  not  entitled  to  a  directed  verdict  for  money  expended  by  her  in  dis- 

(725) 


§  822  TRIAL  (Ch.  13 

be  eliminated  from  consideration,  leaving  that  evidence  only  which 
is  favorable  to  the  party  against  whom  the  motion  is  directed.35 
It  is  error  to  direct  a  verdict  where  there  is  a  controverted  ques- 
tion of  material  fact,36  or  any  theory  of  the.  case  under  which  the 

charging  her  husband's  debt  and  purchasing  pro'perty  for  him ;  the  case  being 
for  the  jury.  Sodowsky  v.  Sodowsky,  51  Okl.  689,  152  P.  390. 

Where  an  Indian  minor  died  in  October,  1908,  leaving  a  father  and  mother 
surviving,  and  in  1910  the  mother  and  sister  gave  plaintiff  the  lease  on  which 
he  relied,  and  there  was  no  evidence  of  the  father's  death,  an  instruction  to 
mid  for  plaintiff  was  erroneous.  Aldridge  v.  Whitten,  56  Okl.  694,  156  P.  667. 

Where,  in  a  pledgee's  action  against  an  innocent  purchaser  from  the  pledg- 
er, there  was  evidence  that  pledgor  obtained  possession  by  larceny  from  the 
pledgee,  it  was  error  to  direct  a  verdict  against  the  pledgee.  State  Nat.  Bank 
of  Shawnee  v.  McMahan,  45  Okl.  585,  146  P.  1. 

Counterclaim. — Where  a  counterclaim  states  a  good  cause  of  action  against 
plaintiff,  though  not  a  proper  counterclaim  in  the  action,  and  plaintiff  alleges 
an  affirmative  defense,  but  offers  no  evidence  to  support  it,  a  directed  verdict 
for  plaintiff  on  the  issues  joined  is  error.  Brisley  v.  Mahaffey,  64  Okl.  319, 
167  P.  984. 

35  Baker  v.  Nichols  &  Shepard  Co.,  65  P.  100,  10  Okl.  685;  Harris  v.  Mis- 
souri, K.  &  T.  Ry.  Co.,  103  P.  758,  24  Okl.  341,  24  L.  R.  A.  (N.  S.)  858 ;  Solts 
v.  Southwestern  Cotton  Oil  Co.,  115  P.  776,  28  Okl.  706;  Chicago,  R.  I.  &  P. 
Ry.  Co.  v.  McCulley,  30  Okl.  178,  120  P.  279 ;  Cooper  v.  Flesner,  103  P.  1016,  24 
Okl.  47,  23  L.  R.  A.  (N.  S.)  1180,  20  Ann.  Gas.  29. 

On  a  motion  to  direct  a  verdict  only  the  evidence  favorable  to  the  opposing 
party  should  be  considered.  Ferris  v.  Holiman,  78  Okl.  251,  190  P.  409. 

se  Terry  v.  Gravitt,  56  Okl.  769,  156  P.  633;  Johnson  v.  Rudsisill,  51  Okl. 
480,  152  P.  93 ;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Brown,  55  Okl.  173,  154  P.  1161 ; 
Burke  v.  Smith,  57  Okl.  196, 157  P.  51 ;  Phoenix  Ins.  Co.  of  Hartford  v.  Newell, 
60  Okl.  207,  159  P.  11£7;  Modern  Brotherhood  of  America  v.  Beshara,  142  P. 
1014,  42  Okl.  684 ;  Hogan  v.  Milburn,  44  Okl.  641,  146  P.  5 ;  Brown  &  Bridge- 
man  v.  Western  Casket  Co.,  30  Okl.  144,  120  P.  1001;  Wade  v.  Sumner,  30  Okl. 
784,  120  P.  1011;  Schaefer  v.  Arkansas  Valley  Interurban  Ry.  Co.,  104  Kan. 
740,  181  P.  118;  Fulsom-Morris  Coal  &  Mining  Co.  v.  Mitchell,  132  P.  1103, 
37  Okl.  575;  Gamble  v.  Riley,  39  Okl.  363,  135  P.  390;  Young  v.  Irwin,  79 
I'.  678,  70  Kan.  796 ;  Kelley  v.  Ryus,  29  P.  144,  48  Kan.  120. 

Where  there  is  any  evidence  reasonably  tending  to  establish  plaintiff's  claim, 
it  is  error  to  direct  a  verdict  for  defendant.  Scott  v.  Moore,  52  Okl.  200,  152 
P.  823. 

Where  there  was  evidence  fairly  tending  to  support  defendants'  contention, 
it  was  error  to  direct  a  verdict  for  plaintiff.  Citizens'  State  Bank  of  Grain- 
field  v.  Houser,  148  P.  740,  95  Kan.  351. 

It  is  error  to  direct  a  verdict  when  there  is  a  disputed  question  of  fact 
touching  the  amount  which  plaintiff  should  recover.  Brown  v.  Baird,  48  P. 
180,  5  Okl.  133. 

Where  the  evidence  is  conflicting,  and  such  that  the  jury  might  reasonably 
find  for  plaintiff  a  less  sum  than  directed,  it  is  error  to  direct  a  verdict  for 
plaintiff  for  a  specific  sum.  Miller  v.  Oklahoma  State  Bank  of  Altus,  53  Okl. 
616,  157  P.  767. 

In  personal  isjury  case,  where  amount  of  damage  was  not  precisely  ueter- 

(726) 


Art.  3)  ISSUES   AND   TRIAL  THEREOF  §   822 

opposite  party  could  recover.37  In  other  words  where  the  evidence 
clearly  shows  plaintiff  is  entitled  to  recover,  and  the  only  dispute 
is  as  to  immaterial  issues,  it  is  not  error  to  direct  a  verdict,  and 
where  the  evidence  is  undisputed  on  all  the  issues  necessary  for 
plaintiff's  recovery,  the  court  should  instruct  to  find  for  plaintiff, 
though  there  may  be  a  dispute  in  the  evidence  as  to  other  imma- 
terial issues.38  However,  where  evidence  on  certain  issues  clearly 
establishes  plaintiff's  right  to  recover,  verdict  may  be  directed  for 
plaintiff  notwithstanding  other  conflicts.39 

A  verdict  should  be  directed  only  when  the  facts  are  such  that  all 
reasonable  men  must  draw  the  same  conclusion  from  them,40  and 

mined,  It  was  not  error  for  court  to  overrule  defendant's  motion  for  instruct- 
ed verdict  for  plaintiff  in  given  sum.  Bartlesville  Zinc  Co.  v.  James  (Okl.)  166 
P.  1054. 

Refusal  to  direct  a  verdict  for  a  street  car  passenger  injured  in  attempting 
to  alight  held  not  error,  where  the  evidence  was  conflicting  as  to  negligence 
and  contributory  negligence.  Christian  v.  Union  Traction  Co.,  154  P.  271,  97 
Kan.  46. 

Where  the  evidence  as  to  every  issue  of  fact  was  conflicting,  court  under 
Rev.  Laws  1910,  §  4993,  cannot  direct  verdict.  Abraham  v.  Southwestern  Cot- 
ton Oil  Co.  (Okl.)  169  P.  618. 

In  action  for  compensation  for  procuring  exchange  of  land,  where  question 
of  condition  of  agreement  between  the  principal  and  brokers  was  controverted, 
both  in  pleadings  and  in  testimony,  direction  of  verdict  for  plaintiffs  was  er- 
ror. \  Campbell  v.  Thomas,  56  Okl.  779,  156  P.  647. 

87  Sovereign  Camp,  Woodmen  of  the  World,  v.  Welch,  83  P.  547,  16  Okl.  188. 

Where  the  evidence  was  sufficient  to  support  a  verdict  for  plaintiff,  the 
court  properly  refused  to  withdraw  the  case  and  render  judgment  and  in- 
struct for  defendant.  City  of  Ardmore  v.  Fowler,  54  Okl.  77,  153  P.  1117. 

Where  the  evidence  of  defendant  reasonably  tends  to  support  his  answer 
and  cross-petition,  it  is  error  to  instruct  a  verdict  for  plaintiff.  Fakler  v. 
Summer  Mercantile  Co.,  55  Okl.  264,  155  P.  559. 

as  Choctaw,  O.  &  G.  R.  Co.  v.  Garrison,  90  P.  730,  18  Okl.  461. 

39  Dickerson  v.  Incorporated  Town  of  Eldoraro,  64  Okl.  142,  166  P.  708. 

Where  plaintiff  under  the  pleadings  is  entitled  to  recover  unless  certain  af- 
firmative defenses  are  sustained  and  where  no  evidence  was  produced  reason- 
ably tending  to  support  such  defenses,  a  verdict  should  be  directed  for  plain- 
tiff. Conwill  v.  Eldridge  (Okl.)  177  P.  79;  Frank  H.  Harrah  &  Co.  v.  First 
Nat.  Bank  of  Tonkawa,  26  Okl.  620,  110  P.  725 ;  Offutt  v.  Wagoner,  30  Okl.  458, 
120  P.  1018 ;  Fitzpatrick  v.  Nations,  30  Okl.  462,  120  P.  1020. 

40  Continental  Casualty  Co.  v.  Owen,  38  Okl.  107,  131  P.  1084;   Campbell  v. 
Thomas,  56  Okl.  779,  156  P.  647. 

The  court  may  direct  a  verdict  only  where  the  evidence  is  undisputed  or 
such  that  the  court  would  set  aside  a  verdict  in  opposition  to  it.  Moore  v. 
First  Nat.  Bank  of  Iowa  City,  121  P.  626,  30  Okl.  623. 

Where  the  evidence  of  plaintiff  was  sufficient  to  support  his  action,  and 

(727) 


§  822  TRIAL  (Ch.  13 

not  when  it  is  necessary  to  weigh  the  evidence  to  determine  where 
the  preponderance  lies.41  On  the  other  hand  where  the  facts  are  un- 
disputed or  of  such  conclusive  character  that  the  court  in  its  discre- 
tion would  be  compelled  to  set  aside  a  verdict  returned  in  opposi- 
tion thereto,  a  verdict  may  be  directed.42 

there  was  no  substantial  evidence  for  defendant,  it  was  error  to  refuse  to  in- 
struct to  find  a  verdict  for  plaintiff.  Hussey  v.  Blaylock,  38  Okl.  204,  132  P. 
821. 

A  verdict  cannot  be  peremptorily  instructed  against  a  party  where  the  evi- 
dence would  sustain  one  in  his  favor.  Jones  v.  Citizens'  State  Bank,  39  Okl. 
393,  135  P.  373. 

Where  the  evidence  reasonably  tends  to  establish  the  truth  of  the  allega- 
tions of  a  petition  stating  a  cause  of  action,  it  is  error  to  instruct  a  verdict  for 
defendant.  Stewart  v.  Lafayette,  55  Okl.  411,  153  P.  847. 

Where  there  is  any  evidence  tending  reasonably  to  sustain  the  petition,  ver- 
dict should  not  be  directed,  the  jury  being  the  sole  judges  of  the  facts  and  in- 
ferences to  be  drawn  therefrom.  Midland  Valley  R.  Co.  v.  Rippe,  61  Okl.  314, 
161  P.  233. 

Where  evidence  in  a  shipper's  action  for  damages  to  stock  does  not  show 
negligence  by  carrier  refusal  of  peremptory  instruction  for  defendant  held 
error.  St.  Louis  &  S.  F.  R.  Co.  v.  Waggoner,  52  Okl.  1,  152  P.  448. 

41  Freeman-Sipes  Co.  v.  Henson,  110  P.  909,  26  Okl.  799;  Lower  v.  Shorthill, 
103  Kan.  534,  176  P.  107;   National  Council  of  Knights  and  Ladies  of  Securi- 
ty v.  Fowler  (Okl.)  168  P.  914. 

Evidence  in  an  action  for  breach  of  a  building  contract  and  for  compensa- 
tion for  extra  work  held  to  reasonably  sustain  the  allegations  of  plaintiff's 
petition  and  render  erroneous  the  direction  of  a  verdict  for  defendant.  Stew- 
art v.  Lafayette,  55  Okl.  411,  153  P.  847. 

42  Sartain  v.  Walker,  60  Okl.  £58,  159  P.  1096;    Ewing  v.  United  States,  89 
P.  593,  11  Ariz.  1;   Hanenkratt  v.  Hamil,  61  P.  1050,  10  Okl.  219;    Neeley  v. 
Southwestern  Cotton  Seed  Oil  Co.,  75  P.  537,  13  Okl.  356,  64  L.  R.  A.  145; 
Guss  v.  Federal  Trust  Co.,  91  P.  1045,  19  Okl.  138;    Murphy  v.  Cobb,  5  Colo. 
281;   Denver  Jobbers'  Ass'n  v.  Rumsey,  71  P.  1001,  18  Colo.  App.  320;   Haner 
v.  Northern  Pac.  Ry.  Co.,  62  P.  1028,  7  Idaho,  305 ;   Barr  v.  Irey,  45  P.  Ill,  3 
Kan.  App.  240;    St.  Louis  &  S.  F.  R.  Co.  v.  Bloom,  39  Okl.  78,  134  P.  432;   Vin- 
son  v.  Los  Angeles  Pac.  R.  Co.,  82  P.  53,  147  Cal.  479;    Sanders  v.  Chicago,  R. 
I.  &  P.  Ry.  Co.,  61  P.  1075,  10  Okl.  325;   Conklin  v.  Yates,  83  P.  910,  16  Okl. 
266;   Creagh  v.  Equitable  Life  Assur.  Soc.,  52  P.  526,  19  Wash.  108;   Chicago, 
R,  I.  &  P.  Ry.  Co.  v.  McCulley,  30  Okl.  178,  120  P.  279. 

The  direction  of  a  verdict  for  defendants  held  not  error,  where  there  was 
no  evidence,  tending  to  support  plaintiffs  cause  of  action.  Stroud  v.  Elliott, 
45  -Okl.  447,  145  P.  804. 

Where  plaintiff's  evidence  made  out  a  case,  and  defendants  introduced,  no 
evidence  in  rebuttal,  the  court  properly  instructed  a  verdict  for  plaintiff. 
Moore  v.  Leigh-Head  &  Co.,  48  Okl.  228,  149  P.  1129. 

Where  the  evidence  was  insufficient  to  sustain  a  verdict  for  plaintiff,  a  ver- 
dict was  properly  directed  for  defendant.  Flamm  v.  Wineland,  139  P.  961,  41 
Okl.  688. 

A  peremptory  instruction  may  and  should  be  given,  when  the  evidence  in 

(728) 


Art.  3)  ISSUES  AND  TRIAL  THEREOF  §   822 

Where  there  is  no  competent  testimony  offered  sustaining  aver- 
ments of  plaintiff's  petition,  it  is  not  error  to  direct  verdict  for  de- 
fendant.43 

favor  of  one  of  the  parties  is  uncontradicted.  Smoot  &  Abbott  v.  W.  L.  Moody 
&  Co.,  125  P.  1134,  34  Okl.  522 ;  Eminent  Household  of  Columbian  Woodmen 
v.  Prater,  133  P.  48,  37  Okl.  568. 

Where  plaintiff  offers  no  evidence  even  reasonably  tending  to  support  his  al- 
legations, it  is  not  error  to  direct  a  verdict  for  defendants.  Burris  v.  Leet, 
51  Okl.  741,  152  P.  352. 

43  Grand  Lodge  K.  P.  of  North  America,  etc.,  v.  Farmers'  &  Merchants'  Bank 
of  Boley,  64  Okl.  225,  166  P.  1080. 

Where  the  evidence  for  plaintiff  is  sufficient  to  prove  his  cause  of  action, 
and  there  is  no  substantial  evidence  for  defendant,  it  is  not  error  to  direct  a 
verdict  for  plaintiff.  Cockrell  v.  Schmitt,  94  P.  521,  20  Okl.  207,  129  Am.  St. 
Eep.  737. 

AVhere  the  only  defense  is  the  statute  of  limitations,  and  the  undisputed 
evidence  shows  that  plaintiff's  cause  of  action  is  not  barred  by  the  statute, 
it  is  error  to  refuse  a  peremptory  instruction  for  plaintiff.  Fidelity  &  Deposit 
€o.  v.  Sheahan,  133  P.  228,  37  Okl.  702,  47  L.  R.  A.  (N.  S.)  309. 

Where  the  petition,  in  a  widow's  action  for  death  of  her  husband,  alleged 
that  no  administrator  had  been  appointed  and  there  was  no  proof  thereof,  it 
was  error  to  refuse  a  peremptory  instruction  for  defendant.  Frederick  Cot- 
ton Oil  &  Mfg.  Co.  v.  Clay,  50  Okl.  123,  150  P.  451. 

Where  demurrer  to  plaintiff's  evidence  was  properly  overruled  and  defendant 
failed  to  introduce  new  evidence,  a  verdict  was  properly  directed  for  plain- 
tiff. Kilgore  v.  Rowland  (Okl.)  172  P.  43. 

Where  the  evidence  introduced  by  plaintiff  fails  to  support  the  allegations 
of  the  bill  of  particulars,  it  is  the  duty  of  the  court,  on  motion,  to  instruct  the 
jury  to  return  a  verdict  for  defendant.  Barr  v.  Irey,  45  P.  Ill,  3  Kan.  App. 
240. 

In  a  suit  for  the  price  of  a  car  of  flour,  where  there  was  a  plea  of  payment 
and  a  cross-action  in  damages  alleging  that  the  flour  was  defective,  and  its  use 
injurious  to  defendant  in  his  business  as  a  baker,  where  the  evidence  proved 
payment,  it  was  error  to  refuse  to  instruct  to  find  for  defendant  on  his  plea, of 
payment,  and  that  nothing  remained  to  consider  except  the  issues  on  his  cross- 
petition.  Bales  v.  Northwestern  Consol.  Milling  Co.,  96  P.  559,  21  Okl.  421. 

It  is  not  error  to  instruct  the  jury  to  return  a  verdict  for  defendant,  where 
the  action  is  founded  on  a  specific  agreement,  and  plaintiff's  evidence  shows 
that  its  performance  had  by  consent  of  both  parties  been  waived  and  a  differ- 
ent agreement  had  been  made.  Peckinpaugh  v.  Lamb,  79  P.  673,  70  Kan.  799. 

Where  plaintiff  has  clearly  made  out  his  case,  and  there  is  no  contrary  evi- 
dence, it  is  proper  for  the  court  to  direct  a  verdict  in  his  favor.  Hillis  v.  First 
Nat.  Bank,  38  P.  565,  54  Kan!  421. 

Where  plaintiff  sues  to  recover  possession  of  real  estate  as  his  homestead, 
but  on  the  trial  offered  no  proof  to  sustain  such  claim,  it  is  not  error  to  direct 
a  verdict  against  him.  KeUey  v.  Reynolds,  128  P.  116,  35  Okl.  37. 

Where,  in  a  purchaser's  suit  to  recover  the  purchase  money  paid,  it  ap- 
peared that  the  contract  provided  that  the  money  should  be  returned  upon  a 
failure  to  do  certain  things,  and  the  undisputed  evidence  showed  such  failure, 

(729) 


§  822  TRIAL  (Ch.  13 

Where  the  evidence  on  behalf  of  plaintiff  is  sufficient  to  prove 
his  cause  of  action,  and  there  is  no  substantial  evidence  offered  by 

a   directed  verdict  for  plaintiff  was  proper.     Farm  Land  Mortgage  Co.  v. 
Wilde,  136  P.  1078^  41  Okl.  45. 

Where,  in  an  action  for  legal  services,  plaintiffs'  testimony  showed  that  two 
defendants  had  paid  their  share  of  the  fee,  a  verdict  was  properly  directed 
for  such  defendants.  Kappler  v.  Storm,  54  Okl.  493,  153  P.  1142. 

Where  the  payment  of  a  sum  certain  is  a  condition  precedent  to  a  right  to 
surrender  a  lease,  and  on  a  suit  for  rent  a  prior  surrender  is  pleaded,  but 
there  is  no  evidence  that  said  sum  certain  was  ever  paid  or  tendered,  it  was 
not  error  to  direct  a  verdict  for  plaintiff.  Burress  v.  Diem,  101  P.  1116,  23  Okl. 
776. 

Where  evidence  fails  to  show  malice  in  instituting  proceedings  and  absence 
of  probable  cause,  it  is  the  duty  of  the  court,  on  request,  to  direct  a  verdict 
for  defendant.  Jones  Leather  Co.  v.  Woody  (Okl.)  169  P.  878. 

Where  the  undisputed  evidence  showed  that  the  purchaser  was  in  default 
and  had  been  for  some  time  before  the  vendor's  action  in  eiectment,  and  where 
no  defense  was  offered,  a  directed  verdict  for  the  vendor  was  proper.  Lons- 
dale  v.  Reinhard  (Okl.)  176  P.  924. 

In  action  involving  title  to  realty  where  uncontradicted  evidence  shows  the 
legal  and  equitable  title  in  plaintiffs  and  defendant  offers  no  evidence  to  show 
a  superior  title  in  himself  or  any  defense,  it  is  not  error  to  instruct  a  verdict 
for  plaintiff.  Longest  v.  Langford  (Okl.)  172  P.  927. 

Where  plaintiff's  evidence  is  uncontradicted,  and  not  inherently  improbable, 
and  is  sufficient  to  prove  its  case,  and  defendant  offers  no  evidence,  it  is  not 
error  to  instruct  for  plaintiff.  Hamilton  v.  Blakeney  (Okl.)  165  P.  141. 

Direction  of  verdict  in  an  action  on  a  verified  account  held  not  error,  where 
defendant  offered  no  evidence  controverting  plaintiff's  right  to  recover.  N.  S. 
Sherman  Mach.  &  Iron  Works  v.  R.  D.  Cole  Mfg.  Co.,  51  Okl.  353,  151  P.  1181. 

Bills  and  notes. — Where  two  parties  are  jointly  sued  on  a  note  and  on  an 
account,  and  the  evidence  shows  that  both  signed  the  note,  but  there  is  no  evi- 
dence of  liability  of  one  party  on  the  account,  the  court  should  instruct  that 
such  party  is  not  liable.  Stuckey  v.  Irwin,  163  P.  621,  100  Kan.  57. 
,  In  action  on  note  for  price  of  land,  where  there  was  no  proof  of  rescission 
or  abandonment  of  contract,  verdict  was  properly  directed  for  plaintiff.  Soot- 
er  v.  Janes,  57  Okl.  368,  157  P.  28£. 

In  an  action  on  a  draft  by  the  holder  thereof  who  acquired  it  for  value  be- 
fore maturity  without  notice  against  an  indorser  from  whom  the  draft  is  ob- 
tained by  fraud,  the  knowledge  of  the  facts  which  would  put  a  prudent  man 
on  inquiry  is  not  sufficient  to  defeat  the  right  to  recover,  and  the  court  may  di- 
rect a  verdict  for  the  holder  where  the  circumstances  are  not  sufficiently 
strong  for  it  to  be  said  as  a  matter  of  law  that  bad  faith  may  be  reasonably 
inferred  therefrom.  Forbes  v.  First  Nat.  Bank  of  Enid,  95  P.  785,  21  Okl.  206. 

Under  the  evidence  in  an  action  on  a  negotiable  note,  held  that  the  court 
should  have  instructed  that  plaintiff  was  an  innocent  purchaser  and  that  the 
defenses  set  up  were  not  available.  Showalter  v.  Webb,  141  P.  439,  42  Okl. 
297. 

Under  Rev.  Laws  1910,  §  4759,  where  in  an  action  against  an  indorser  who 
files  an  unverified  answer  plaintiff  introduces  the  note  in  evidence  and  d*- 

(730) 


Art.  3)  ISSUES   AND   TRIAL  THEREOF  •          §   822 

defendant  the  court  may  properly  instruct  the  jury  to  return  a  ver- 
dict for  plaintiff.44 

fendant  offers  no  testimony,  the  court  may  direct  a  verdict  for  plaintiff. 
Home  v.  Oklahoma  State  Bank  of  Atoka,  139  P.  992,  42  Okl.  07. 

Where  there  is  no  substantial  evidence  to  authorize  a  verdict  for  a  defend- 
ant, in  an  action  against  him  on  a  negotiable  note,  bought  by  plaintiff  in  good 
faith  before  maturity,  it  is  not  error  for  the  court  to  direct  a  verdict  for 
plaintiff  for  the  full  amount  thereof.  McCormick  v.  Holmes,  21  P.  108,  41 
Kan.  265. 

On  the  trial  to  a  jury  of  a  suit  on  a  note,  the  court  has  the  right  to  com- 
pute the  amount  of  recovery,  and  direct  a  verdict,  when  the  state  of  the  evi- 
dence justifies  it.  MacRitchie  v.  Johnson,  30  P.  477,  49  Kan.  321. 

Insurance. — Where  the  uncontradicted  evidence  showed,  as  to  the  only  issue 
involved,  that  the  insurance  policy  sued  on  had  been  issued  and  was  in  effect, 
it  was  error  to  deny  a  directed  verdict  for  plaintiff.  Van  Arsdale-Osborne 
Brokerage  Co.  v.  Wiley,  140  P.  153,  40  Okl.  651. 

In  an  action  on  a  fidelity  bond,  where  the  giving  of  the  bond,  the  defalca- 
tion, and  the  amount  thereof  were  admitted,  defendant  claiming  that  the 
plaintiff  had  breached  the  warranties,  the  burden  of  proof  on  this  issue  be- 
ing on  the  defendant,  and  where  the  evidence,  with  all  the  inferences  that 
the  jury  would  properly  gather  from  it,  was  insufficient  to  support  a  verdict 
for  the  defendant,  so  that  such  a  verdict,  if  returned,  must  be  set  aside,  the 
court  is  not  bound  to  submit  the  case  to  the  jury,  but  may  direct  a  verdict  for 
the  plaintiff,  providing  his  case  has  been  properly  made  out.  Southern  Sure- 
ty Co.  v.  Tyler  &  Simpson  Co.,  30  Okl.  116,  120  P.  936. 

Where  the  widow  of  insured  in  an  action  on  a  policy  introduces  evidence 
that  the  insured  made  application  for  a  "Standard  Life  Insurance  Policy,"  and 
that  such  policy  was  delivered  to  insured,  and  rests  her  case,  and  defendant 
introduces  conclusive  proof  that  the  policy  was  not  a  standard  policy,  but  a 
"sub-standard  policy,"  differing  in  many  important  particulars  from  that  call- 
ed for  by  the  application,  it  is  not  error  to  direct  a  verdict  for  defendant. 
Keel  v.  New  York  Life  Ins.  Co.,  94  P.  177,  20  Okl.  195. 

Where,  in  an  action  on  a  life  insurance  policy,  the  only  defense  was  fraud 
in  the  procurement  of  the  insurance,  and  there  was  no  evidence  to  establish  it, 
it  was  proper  to  direct  a  verdict  for  plaintiff.  Eminent  Household  of  Colum- 
bian Woodmen  v.  Prater,  133  P.  48,  37  Okl.  568. 

Where,  in  an  action  on  a  fire  policy  requiring  proofs  of  loss,  there  was  no 
evidence  that  such  proofs  were  furnished  a  demurrer  to  the  evidence  and. a 
motion  for  an  instructed  verdict  for  defendant  should  have  been  sustained. 
Palatine  Ins.  Co.  v.  Lynn,  141  P.  1167,  42  Okl.  486. 

Where  the  petition  and  evidence  show  a  cause  of  action  on  a  life  policy 
which  is  incontestable  after  two  years  from  date  of  issue,  and  the  only  defense 
is  breach  of  warranties  pleaded  more  than  two  years  after  its  date,  the  court 
should  direct  a  verdict  for  plaintiff.  Mutual  Life  Ins.  Co.  of  New  York  v. 
Buford,  61  Okl.  158,  160  P.  928. 

Negligence. — Where  the  evidence  failed  to  show  causal  connection  between 

44  Ketchum  v.  Wilcox,  48  P.  446,  5  Kan.  App.  881 ;  Irwin  v.  Dole,  52  P.  916, 
7  Kan.  App.  84;  Underwood  v.  Stack,  46  P.  1031,  15  Wash.  497;  Carmack  v. 
Drum,  67  P.  808,  27  Wash.  382. 

(731) 


§§  822-823  TRIAL  (Ch.  IS 

Where  defendant,  by  his  answer  and  evidence,  admits  all  the 
allegations  of  plaintiff's  petition,  the  court  may  instruct  the  jury 
to  return  a  verdict  for  plaintiff.45 

When  the  evidence  shows  without  dispute  that  the  plaintiff  is 
entitled  to  recover  and  the  defendant  elects  to  stand  upon  a  de- 
murrer to  the  evidence,  it  is  proper  to  direct  a  verdict  for  the 
plaintiff.46 

§  823.    Effect  of  motion 

Where  an  answer  denying  execution  of  a  note  is  not  verified  as 
required  by  statute,  but  plaintiff  joins  issue  thereon  by  general  de- 
nial in  reply,  a  motion  to  direct  a  verdict  for  plaintiff  after  the 
close  of  the  evidence  does  not  question  the  sufficiency  of  the  an- 
swer.47 

A  motion  by  each  party  that  a  verdict  be  directed  is  not  a  waiv- 
er of  the  right  to  have  the  facts  passed  upon  by  the  jury,  or  an 
agreement  to  submit  them  to  the  trial  judge  if  the  motion  be  de- 
nied.48 

the  negligence  averred  and  the  damages  suffered,  the  court  should  direct  a 
verdict  for  defendant.  Patterson  v.  Seals,  51  Okl.  347,  151  P.  591. 

Where  the  evidence  does  not  entirely  fail  to  show  negligence  by  defendant, 
the  court  should  submit  the  case  to  the  jury,  but  where  the  evidence  fails  en- 
tirely to  show  negligence,  a  verdict  should  be  instructed  for  defendant.  New 
York  Plate  Glass  Ins.  Co.  v.  Katz,  51  Okl.  713,  15£  P.  353. 

A  verdict  held  properly  directed  in  an  action  by  a  miller  whose  han'd  was 
<lrawn  into  the  hopper  of  a  mill  by  a  coil  of  wire  which  he  was  attempting 
to  remove,  in  the  absence  of  proof  that  the  presence  of  the  wire  was  the  result 
of  defendant's  negligence.  Smith  v.  Acme  Milling  Co.,  34  Okl.  439,  126  P.  190. 

In  action  by  widow  for  wrongful  death  of  husband,  where  petition  alleges 
that  no  personal  representative  has  been  appointed,  and  issue  is  properly  rais- 
ed thereon  by  answer,  and  there  is  no  proof  of  such  allegation,  it  is  error  to 
refuse  to  peremptorily  direct  verdict  for  defendant.  Chicago,  R.  I.  &  P.  Ry. 
Co.  v.  Brooks,  57  Okl.  163,  156  P.  362. 

Where  the  evidence  fails  to  show  causal  connection  between  the  negligence 
alleged  and  the  injuries  suffered,  the  court  should  on  request  direct  a  verdict 
for  the  defendant  employer.  Sallisaw  Cotton  Oil  Co.  v.  Holland,  56  Okl.  428, 
156  P.  174. 

Where  there  is  no  evidence  of  negligence  or  from  which  negligence  might 
be  reasonably  inferred,  a  verdict  should  be  directed  for  defendant.  St.  Louis 
&  S.  F.  R.  Co.  v.  Smith,  137  P.  357,  41  Okl.  314. 

45  Gifford  v.  Ammer,  54  P.  802,  7  Kan.  App.  365. 

46  Watkins  v.  School  Dist.  No.  104  of  Crawford  County,  85  Kan.  760,  118  P. 
1069. 

47  Jones  v.  Citizens'  State  Bank,  39  Okl.  393,  135  P.  373. 

48  Midland  Valley  R.  Co.  v.  Lynn,  38  Okl.  695,  135  P.  370;   Farmers'  Nat. 

(732) 


Art.  3)  ISSUES  AND  TRIAL  THEREOF  §   824 

§  824.    Form  of  motion 

MOTION  FOR  DIRECTED  VERDICT   (ORAL,) 

Comes  now  the  plaintiff  and  moves  the  court  to  direct  the  jury 
to  return  a  verdict -in  favor  of  plaintiff  and  against  the  defendant, 
for  the  reason  that  the  evidence  clearly  shows  that  plaintiff  is  entitled 
to  recover  and  that  no  evidence  has  been  introduced  reasonably  sup- 
porting any  defense  on  behalf  of  the  defendant,  and  that  no  material 
question  is  put  in  issue  by  the  evidence. 

Bank  v.  McCall,  25  Okl.  600,  106  Pac.  866,  26  L.  R.  A.  (N.  S.)  217;  Hogan  v. 
Milburn,  44  Okl.  641,  146  P.  5;  Smith  v.  Hutchison  Box  Board  &  Paper  Co., 
101  Kan.  274,  166  P.  484 ;  Taylor  v.  Wooden,  30  Okl.  6,  118  P.  372,  36  L.  R.  A. 
(N.  S.)  1018;  Bartlesville  Zinc  Co.  v.  James  (Okl.)  166  P.  1054. 

(733) 

•I 


§§  825-826  WITNESSES  (Ch.14 

CHAPTER  XIV 

WITNESSES 

Sections 

825-840.  Article  I. — Procuring    attendance    and    testimony. 

841-859.  Article  II. — Examination  of  witnesses. 
841-852.  Division  I. — Direct  examination. 

853-858-  Division  II — Cross-examination. 

859.  Division  III. — Redirect   examination. 

860-874.  Article  III. — Competency  and  privilege. 

875-888.  Article  IV — Credibility   and  impeachment. 

ARTICLE  I 

PROCURING  ATTENDANCE  AND  TESTIMONY 

Sections 

825.  Taking  testimony — Modes. 

826.  Oath— Interpreter. 

827.  Subprena — Issuance. 

828.  Contents — Duces  tecum. 

829.  Service. 

830.  Disobedience  of — Contempt. 

831.  Forms- 

832.  Attachment  for  nonattendance. 

833.  Punishment. 

834.  Requisites  of — Form. 

835.  Prisoners  as  witnesses. 
836-  Custody. 

837.  Attendance. 

838.  Of  adverse  party. 

839.  Witness  may  demand  fees. 

840.  Refusal    to    testify — Contempt. 

§  825.    Taking  testimony — Modes 

"The  testimony  of  witnesses  is  taken  in  three  modes: 

"First.     By  affidavits. 

"Second.  By  deposition. 

"Third.     By  oral  examination."  1 

§  826.     Oath — Interpreter 

"Before  testifying,  the  witness  shall  be  sworn  to  testify  to  the 
truth,  the  whole  truth,  and  nothing  but  the  truth.     The  mode  of 

i  Rev.  Laws  1910,  §  5067. 
(734) 


Art.   1)  PROCURING  ATTENDANCE   AND   TESTIMONY        §§   827~829 

administering  an  oath  shall  be  such  as  is  most  binding  on  the  con- 
science of  the  witness.  An  interpreter  may  be  sworn  to  interpret 
truly,  whenever  necessary."  2 

§  827.     Subpoena — Issuance 

"The  clerks  of  the  several  courts  shall,  on  application  of  any  per- 
son having  a  cause  or  any  matter  pending  in  the  court,  issue  a 
subpoena  for  witnesses,  under  the  seal  of  the  court,  inserting  all 
the  names  required  by  the  applicant  in  one  subpoena,  which  may 
be  served  by  the  sheriff  or  any  constable  of  the  county,  or  by  the 
party,  or  any  other  person  in  the  manner  provided  in  section  5054. 
When  a  subpoena  is  not  served  by  the  sheriff  or  constable,  proof 
of  service  shall  be  shown  by  affidavit;  but  no  costs  of  service  of 
the  same  shall  be  allowed,  except  when  served  by  an  officer."  3 

§  828.    Contents — Duces  tecum 

"The  subpoena  shall  be  directed  to  the  person  therein  named,  re- 
quiring him  to  attend  at  a  particular  time  and  place,  to  testify  as 
a  witness ;  and  it  may  contain  a  clause  directing  the  witness  to 
bring  with  him  any  book,  writing  or  other  thing,  under  his  con- 
trol, which  he  is  bound  by  law  to  produce  as  evidence."  * 

§  829.    Service 

"Service  of  subpoenas  for  witnesses  in  civil  and  criminal  actions 
in  the  district,  superior,  county  and  justice  of  the  peace  courts  of 
this  state  shall  be  made  by  the  officer,  or  other  person  making  the 
service,  by  either  personal  service  of  such  subpoena  containing 
the  time,  place  and  the  name  of  the  court,  and  the  action  in  which 
he  is  required  to  testify,  or  by  mailing  a  copy  thereof  by  regis- 
tered mail,  not  less  than  three  days  before  the  trial  day  of  the 
cause  upon  which  said  witness  is  required  to  attend,  and  the  per- 

2  Rev.  Laws  1910,  §  5066. 

s  Rev.  Laws  1910,  §  5051. 

4  Rev.  Laws  1910,  §  5052. 

Where,  upon  the  application  of  the  plaintiff,  a  subpoena  Is  directed  to  the 
defendant  in  the  action,  requiring  him  to  attend  upon  the  trial  to  testify  as 
a  witness,  and  the  subpoena  requires  the  witness  to  bring  with  him  a  written 
memorandum  under  his  control,  which  is  competent  evidence  on  the  part  of 
the  plaintiffs,  and  such  witness  appears,  is  sworn  as  a  witness,  and  has  the 
memorandum  under  his  control  and  in  his  hands  while  upon  the  witness  stand, 
it  is  error  for  the  court  to  refuse  to  make  him  produce  it  as  evidence  in  the 
case.  Marsh  v.  Davis,  6  P.  612,  33  Kan.  326. 

(735) 


§§  830-831  WITNESSES  (Ch.  14 

son  making  such  service  shall  make  a  return  thereof  showing  the 
manner  of  service,  and  if  the  same  be  by  registered  mail,  he  shall 
file  with  such  return  the  registry  receipt:  Provided,  that  the  per- 
son or  county  attorney  issuing  the  prsecipe  for  a  subpoena  shall 
state  therein  the  manner  in  which  the  witness  or  witnesses  shall  be 
served,  and  the  officer  or  person  serving  such  subpoena  shall  serve 
the  same  in  the  manner  directed  by  the  prsecipe,  and  make  his  re- 
turn in  accordance  therewith :  Provided,  further,  that  if  the  prsec- 
ipe calls  for  serving  such  subpoena  by  registered  letter,  then  the 
clerk  shall  serve  the  same  as  provided  for  the  serving  of  jurors." 5 

§  830.    Disobedience  of — Contempt 

"Disobedience  of  a  subpoena,  or  refusal  to  be  sworn  or  to  answer 
as  a  witness,  or  to  subscribe  a  deposition,  when  lawfully  ordered, 
may  be  punished  as  a  contempt  of  the  court  or  officer  by  whom  his 
attendance  or  testimony  is  required."  6 

§  831.    Forms 

SUBPCENA 

(Caption.) 

To Greeting: 

You  are  hereby  commanded  to  appear  before  the court  of 

county,  at  the  court  house  of  said  county,  at ,  on  the 

day  of ,  19 — ,  at o'clock m.,  to  testify 

as  a  witness  in  the  above  entitled  case  pending  in  said  court,  on 
the  part  of  the and  not  depart  without  leave  of  court. 

Hereof  fail  not,  under  penalty  of  law. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  official 

seal  in  the  city  of this day  of ,  19 — . 

• ,  Court  Clerk, 

(Seal.)  By ,  Deputy. 

OFFICER'S  RETURN 

Received  this  writ  this  day  of  ,  19 — ,  at  

o'clock, m.     ,  19 — ,  served  the  same  by  leaving  a 

copy  thereof  with  the  indorsement  thereon  duly  certified  to  the 
within  named , ,  19 — ,  at  the  usual  place  of  residence 

5  Sess.  Laws  1913,  p.  113,  §  2,  amending  Sess.  Laws  1910,  ch.  51,  §  2  (Rev. 
Laws  1910,  §  5054)   effective  March  20,  1913. 
e  Rev.  Laws  1910,  §  5057. 

(736) 


Art.l)  PROCURING  ATTENDANCE   AND   TESTIMONY       §§   831-832 

of  the  within  named  witness ;  by ,  19 — ,  I  cannot  find 

the  within  named  in  my  county. 

: ,  Sheriff, 

By Under  Sheriff  (Deputy). 

RETURN  OF  SUBPOENA  SERVED  BY  REGISTERED  MAII, 

State  of  Oklahoma, 


County  of 

I  hereby  certify  that  on  the day  of ,  19 — ,  I  served 

the  within  subpoena  on  A.  B.,  by  mailing  a  true  and  certified  copy 
thereof,  with  all  of  the  indorsements  thereon,  by  registered  mail, 

addressed  to  the  said  A.  B.,  at ,  his  usual  place  of  residence, 

the  registry  receipt  being  attached  hereto  and  filed  herewith. 

,  Court  Clerk, 

(Seal.)  By ,  Deputy. 

PR^CIPE   FOR   SUBPCENA — CIVIL 

State  of  Oklahoma, 


,~t  r  SS.  • 

County. 

In  the  District  Court  of County. 

A.  B.,  Plaintiff,     1 

v.  I  Praecipe. 

C.  D.,  Defendant] 
To  the  Clerk  of  Said  Court : 

You  are  hereby  directed  to  issue  a  subpoena  for  E.  F.,  G.  H.,  and 

M.  N.  to  appear  in  said  court  on  the  of  ,  19 — ,  at 

o'clock m.,  to  testify  on  the  part  of  said  plaintiff  (or 

defendant)  in  the  above  entitled  cause. 

Dated  this day  of ,  19—. 

X.  Y.,  Attorney  for  Plaintiff  (or  Defendant). 

§  832.     Attachment  for  nonattendance 

"When  a  witness  fails  to  attend  in  obedience  to  a  subpoena  (ex- 
cept in  case  of  a  demand  and  failure  to  pay  his  fees),  the  court  or 
officer  before  whom  his  attendance  is  required  may  issue  an  at- 
tachment to  the  sheriff,  coroner  or  constable  of  the  county,  com- 
manding him  to  arrest  and  bring  the  person  therein  named  before 
the  court  or  officer,  at  a  time  and  place  to  be  fixed  in  the  attach- 

HON.PL.&PBAC.-47  (737) 


§§  833-834  WITNESSES  (Ch.  14 

ment,  to  give  his  testimony  and  answer  for  the  contempt.  If  the 
attachment  be  not  for  immediately  bringing  the  witness  before 
the  court  or  officer,  a  sum  may  be  fixed  in  which  the  witness  may 
give  an  undertaking,  with  surety,  for  his  appearance ;  such  sum 
shall  be  indorsed  on  the  back  of  the  attachment ;  and  if  no  sum 
is  so  fixed  and  indorsed,  it  shall  be  one  hundred  dollars.  If  the 
witness  be  not  personally  served,  the  court  may,  by  a  rule,  order 
him  to  show  cause  why  an  attachment  should  not  issue  against 
him."  7 

§  833.    Punishment 

"The  punishment  for  the  contempt  mentioned  in  the  preceding 
section,  shall  be  as  follows:  When  the  witness  fails  to  attend,  in 
obedience  to  the  subpoena  (except  in  case  of  a  demand  and  failure 
to  pay  his  fees),  the  court  or  officer  may  fine  the  witness  in- a  sum 
not  exceeding  fifty  dollars.  In  other  cases  the  court  or  officer 
may  fine  the  witness  in  a  sum  not  exceeding  fifty  dollars,  or  may 
imprison  him  in  the  county  jail,  there  to  remain  until  he  shall  sub- 
mit to  be  sworn,  testify  or  give  his  deposition.  The  fine  imposed 
by  the  court  shall  be  paid  into  the  county  treasury,  and  that  im- 
posed by  the  officer  shall  be  for  the  use  of  the  party  for  whom  the 
witness  was  subpoenaed.  The  witness  shall,  also,  be  liable  to  the 
party  injured  for  any  damages  occasioned  by  his  failure  to  attend, 
or  his  refusal  to  be  sworn,  testify  or  give  his  deposition."  8 

A  party  to  a  suit  may  be  called  as  a  witness  by  his  adversary, 
and  his  disobedience  of  the  summons  may  be  punished  in  contempt 
proceedings.9 

Disobedience  of  a  subpoena  is  not  a  direct  contempt  which  may 
be  summarily  punished,  but  is  an  indirect  contempt  committed 
out  of  the  presence  of  the  court,  and  therefore  punishable  only  by 
formal  accusation,  arrest,  plea,  and  trial.10 

§  834.     Requisites  of — Form 

"Every  attachment  for  the  arrest,  or  order  of  commitment  to 
prison  of  a  witness  by  a  court  or  officer,  pursuant  to  this  article, 
must  be  under  the  seal  of  the  court  or  officer,  if  he  have  an  official 

7  Rev.  Laws  1910,  §  5058. 

s  Rev.  Laws  1910,  §  5059. 

»  In  re  Abbott,  54  P.  319,  7  Okl.  78. 

10  State  v.  Anders,  68  P.  668,  64  Kan.  742. 

(738) 


Art.  1)  PROCURING   ATTENDANCE  AND  TESTIMONY  §§834~836 

seal,  and  must  specify,  particularly,  the  cause  of  arrest  or  commit- 
ment ;  and  if  the  commitment  be  for  refusing  to  answer  a  question, 
such  question  must  be  stated  in  the  order.  Such  order  of  commit- 
ment may  be  directed  to  the  sheriff,  coroner  or  any  constable  of 
the  county  where  such  witness  resides,  or  may  be  at  the  time,  and 
shall  be  executed  by  committing  him  to  the  jail  of  such  county,  and 
delivering  a  copy  of  the  order  to  the  jailor."11 

ATTACHMENT    FOR    NOXATTENDANCE    OF    WITNESS 

(Caption.) 

The  State  of  Oklahoma  to  the  Sheriff  of  -        -  County— Greeting : 

You  are  hereby  commanded  to  attach  A.  D.,  and  bring  him  forth- 
with personally  before  this  court,  at  the  city  of  ,  in  said 

county  and  state,  to  answer  to  this  court  for  certain  contempts 
against  this  court,  in  not  obeying  its  writ  of  subpoena,  commanding 

him  to  appear  on  the day  of  —    — ,  19 — -,  before  the  said 

court,  to  testify  in  an  action  there  to  be  tried  between ,  plain- 
tiff, and  ,  defendant;  and  you  are  further  commanded  to 

detain  said  A.  D.  in  your  custody  until  he  shall  be  discharged  by 
this  court ;  and  have  you  then  and  there  this  writ. 

Witness  the  Honorable  -  judge  of  said  courtt,  at ,  on 

the day  of ,  19 — . 

,  Court  Clerk, 

(Seal.)  By  -       —  Deputy. 

Allowed  this day  of ,  19 — . 

,  Judge. 

§  835.     Prisoners  as  witnesses 

"A  person  confined  in  any  prison  in  this  State  may,  by  order  of 
any  court  of  record,  be  required  to  be  produced  for  oral  examina- 
tion in  the  county  where  he  is  imprisoned,  but  in  all  other  cases 
his  examination  must  be  by  deposition."  12 

§  836.    Custody 

"While  a  prisoner's  deposition  is  being  taken,  he  shall  remain  in 
the  custody  of  the  officer  having  him  in  charge,  who  shall  afford 
reasonable  facilities  for  the  taking  of  the  deposition."  13 

11  Rev.  Laws  1910,  §  5061. 

12  Rev.  Laws  1910,  §  5062. 
is  Rev.  Laws  1910,  §  5063. 

(739) 


§§  837-839  WITNESSES  (Ch.  14 

§  837.     Attendance 

"A  witness  shall  not  be  obliged  to  attend  for  examination  on  the 
trial  of  a  civil  action  except  in  the  county  of  his  residence,  nor  to 
attend  to  give  his  deposition  out  of  the  county  where  he  resides,  or 
where  he  may  be  when  the  subpoena  is  served  upon  him."  14 

§  838. Of  adverse  party 

A  party  may  compel  his  adversary,  either  at  the  trial  or  by  depo- 
sition, to  testify  as  a  witness  in  the  same  manner  and  subject  to 
the  same  rules  as  other  witnesses,  and  by  the  service  of  a  sub- 
poena may  compel  the  production  of  any  book,  writing,  or  other 
thing  under  his  control.15 

§  839.     Witness  may  demand  fees 

"A  witness  may  demand  his  traveling  fees  and  fee  for  one  day's 
attendance,  when  the  subpoena  is  served  upon  him;  and  if  the 
same  be -not  paid,  the  witness  shall  not  be  obliged  to  obey  the  sub- 
poena. The  fact  of  such  demand  and  nonpayment  shall  be  stated 
in  the  return."  16 

There  is  no  law  making  a  county  liable  for  the  fees  of  witnesses 
required  to  attend  before  the  grand  jury,  or  in  criminal  causes- in 
any  of  the  courts.17  A  county  is  not  a  party  to  a  criminal  prose- 
cution, and  is  not  liable  for  fees  of  witnesses  attending  before  the 
grand  jury  or  a  court  in  a  criminal  case,  in  the  absence  of  a  stat- 
ute imposing  such  liability.18 

In  an  action  to  recover  for  services  as  a  witness,  where  the  de- 
fense was  that  the  services  were  a  mere  gratuity,  with  the  under- 
standing at  the  time  of  performance  that  they  were  not  to  be  paid 
for,  and  there  was  evidence  tending  to  establish  such  a  defense,  it 
is  error  for  the  court  to  refuse  to  instruct  the  jury  as  to  the  princi- 
ple that  no  recovery  can  be  had  for  services  gratuitously  perform- 
ed.19 

"At  the  commencement  of  each  day  after  the  first  day,  a  witness 
may  demand  his  fees  for  that  day's  attendance,  in  obedience  to  a 

i*  Rev.  Laws  1910,  §  5055. 

IB  Landon  v.  Morehead,  126  P.  1027,  34  Okl.  701. 

m  Rev.  Laws  1910,  §  5056. 

i  •  Board  of  Com'rs  of  Greer  County  v.  Watson,  54  P.  441,  7  Okl.  174. 

is  id. 

"  Stadel  v.  Stadel,  20  P.  475,  40  Kan.  646. 

(740) 


Art.  2)  EXAMINATION  OF  WITNESSES  §§   840-841 

subpoena ;  and  if  the  same  be  not  paid,  he  shall  not  be  required  to 
remain."  20 

§  840.     Refusal  to  testify — Contempt 

Where  a  witness  persists  in  attempting  to  evade  examination, 
it  is  the  court's  duty  to  reprimand  him,  and,  if  necessary,  punish 
him  for  contempt.21 

ARTICLE  II 

EXAMINATION  OF  WITNESSES 

DIVISION  I.— DIRECT  EXAMINATION 
Sections 

841.  Mode  of  testifying. 

842.  Questions. 

843.  Leading  questions. 

844.  Hostile  witnesses. 

845.  Repetition. 

846.  Interrogation  by  court. 

847.  Responsiveness  of  answer. 

848.  Aids    to    explain    testimony — Diagrams — Computation. 

849.  Refreshing  memory. 
850-  Memoranda  as  evidence. 

851.  Stenographer's  notes. 

852.  Recalling  witnesses. 

DIVISION    11.— CBOSS-EXAMINATION 

853-  Extent  of  cross-examination. 

854.  Limitation  to  subjects  of  direct  examination. 

855.  Collateral  and  irrelevant  matters. 

856.  Character  witness. 

857.  Cross-examination  of  party. 
858-  Recalling  witness. 

DIVISION  III. — REDIBECT  EXAMINATION 
859.    Scope  and  extent. 

DIVISION  I. — DIRECT  EXAMINATION 

§  841.     Mode  of  testifying 

It  is  within  the  discretion  of  the  court  to  permit  a  witness  to  tes- 
tify in  a  narrative  form,  and  not  in  answer  to  questions.22 

20  Rev.  Laws  1910,  §  5065. 

21  Ostendorf  v.  State,  128  P.  143,  8  Okl.  Cr.  360. 

Where  a  witness  persists  in  a  refusal  to  answer  a  question,  he  may  be  pun- 

22  Maier  v.  Randolph,  6  P.  625,  33  Kan.  340.  " 

(741) 


§§  841-843  WITNESSES  (Ch.  14 

Testimony  is  not  necessarily  incompetent  because  given  in  a 
dramatic  and  hysterical  manner.23 

Permitting  a  witness  to  be  led  to  correct  an  erroneous  omission 
of  the  word  "not,"  so  as  to  make  his  testimony  conform  to  that 
of  all  the  other  witnesses,  including  the  party  objecting,  is  not  an 
abuse  of  discretion.24 

§  842.     Questions 

A  witness  may  be  questioned  in  his  examination  in  chief  as 
to  his  residence,  occupation,  and  positions  held  by  him..25 

Permitting  plaintiff  to  be  asked  as  to  conversation  between  him- 
self and  defendant  is  not  error,  where  the  question  does  not  nec- 
essarily call  for  anything  that  is  not  competent  evidence.26 

It  is  error  to  ask  a  witness  on  direct  examination  if  he  has  heard 
the  testimony  of  a  prior  witness  as  to  a  material  fact,  and  if  such 
testimony  is  correct.27 

§  843.     Leading  questions 

The  allowance  or  exclusion  of  leading  questions  is  within  the 
discretion  of  the  court.28  But  this  discretion  must  be  exercised 
with  care  and  without  abuse.29 

ished  for  contempt,  as  the  pertinency  of  the  question  asked  was  for  the  de- 
termination of  the  court,  and  not  the  witness.  Hanson  v.  Sward,  140  P.  100, 
92  Kan.  1.  Imprisonment  may  be  imposed,  not  only  to  punish  a  witness  for 
contumacy,  but  to  compel  him  to  obey  a  lawful  order,  and  produce  testimony 
which  the  court  deems  necessary.  Id. ;  Ex  parte  Hanson,  105  P.  694,  80  Kan. 
783. 

Refusal  to  answer  questions  in  a  criminal  proceeding  is  a  criminal  con- 
tempt, and  the  punishment  therefor  is  governed  by  the  Criminal  Code,  and 
where  the  statute  limits  the  punishment  it  must  conform  to  such  limitation. 
Ex  parte  Gudenoge,  100  P.  39,  2  Okl.  Cr.  110.  A  direct  contempt  consists  of 
disorderly  and  insolent  behavior  during  the  session  of  the  court  and  in  its  im- 
mediate view  of  the  unlawful  and  willful  refusal  of  a  person  to  be  sworn  as 
a  witness  and  the  refusal  to  answer  a  proper  question.  Id. 

23  Stafford  v.  Noble,  105  Kan.  219,  182  P.  650. 

24  Smith  v.  Gillis,  51  Okl.  134,  151  P.  869. 

25  Muskogee  Electric  Traction  Co.  v.  Rye,  47  Okl.  142,  148  P.  100. 

26  Mullarky  v.  Manker,  102  Kan.  92,  170  P.  31. 

27  Missouri,  K.  &  T.  Ry.  Co.  v.  Lycan,  47  P.  526,  57  Kan.  635. 

28  Ellison  v.  Beannabia,  46  P.  477,  4  Okl.  347. 

Where  a  witness  for  the  state  testified  to  a  scuffle,  it  was  error  to  exclude 
as  leading  a  question  asking  defendant  whether  a  scuffle  had  preceded  the 
shooting.  State  v.  Alexander,  131  P.  139,  89  Kan.  422. 

29  An  objection  to  a  question  inquiring  of  relatrix  as  to  the  possibility  of  a 
date  being  other  than  as  to  which  she  had  testified  held  properly  sustained ; 

(742) 


Art.  2)  EXAMINATION   OF   WITNESSES  §§    843~846 

Where  a  witness  was  an  illiterate  Mexican  it  was  not  an  abuse 
of  discretion  to  permit  leading  questions  to  be  put  to  him,  so 
that  the  interpreter  might  the  better  render  the  same  into  the 
Mexican  language,  and  the  witness  might  better  understand  them.30 

§  844.     Hostile  witness. 

Leading  questions  must  not  be  asked  a  witness  by  the  party 
calling  him,  unless  he  appears  hostile,  when  the  rule  may  be  relax- 
ed by  the  court;31  that  is,  where  a  witness  is  unwilling  and  hos- 
tile to  the  party  calling  him,  and  his  answers  are  evasive,  he  may 
be  examined  in  the' manner  of  a  cross-examination.32  The  extent 
to  which  he  may  be  examined  rests  generally  in  the  discretion  of 
the  court.33 

§  845.     Repetition 

Where  a  question  has  been  asked  and  answered  without  objec- 
tion, it  is  not  error  to  sustain  an  objection  to  practically  the  same 
question.34 

§  846.    Interrogation  by  court 

The  trial  court  may  in  its  discretion  aid  in  eliciting  material  mat- 
ter suggested  by  the  evidence  by  interrogating  a  witness,35  but  in 

the  question  being  leading  and  substantive.  State  v.  Creager,  155  P.  29,  97 
Kan.  334. 

In  a  case  tried  by  the  district  court  without  a  jury  on  a  petition  to  vacate 
a  judgment,  and  for  a  new  trial,  a  question  was  asked  by  the  counsel  of  the 
then  defendant,  the  original  plaintiff,  of  the  then  defendant  himself,  who  was 
then  testifying  as  a  witness  with  respect  to  a  matter  which  was  competent  to 
be  proved  in  the  case,  but  the  question  was  to  some  extent  leading,  and  as- 
sumed a  certain  fact  which  probably  had  not  yet  been  proved,  and  probably 
should  not  have  been  proved ;  and  the  answer  to  the  question  was  with  refer- 
ence to  that  portion  of  the  question  which  was  proper  to  be  proved.  Held, 
that  the  court  erred  in  permitting  the  question  to  be  asked  in  the  form  in 
which  it  was  asked.  Fullenwhler.  v.  Ewing,  1  P.  300,  30  Kan.  15. 

A  question  asked  a  witness  regarding  an  alleged  dying  declaration  of  dece- 
dent, "Didn't  he  say,  'He  murdered. me.  doctor?'"  was  leading,  and  an  objec- 
tion on  that  ground  should  have  been  sustained.  Mulkey  v.  State,  113  P.  532. 
5  Okl.  Cr.  75. 

so  Ellison  v.  Beannabia,  46  P.  477,  4  Okl.  347. 

siOstendorf  v.  State,  128  P.  143,  8  Okl.  Cr.  360;  Gardner  v.  Stat<  115  P. 
607,  5  Okl.  Cr.  531. 

32  State  v.  Hughes,  56  P.  142,  8  Kan.  App.  631. 

33  State  v.  Hamilton,  87  P.  363,  74  Kan.  461. 

34  Ferris  v.  Shandy  (Okl.)  174  P.  1060;    State  v.  Sweet,  101  Kan.  746,  168  P. 
1112 ;   Hughes  v.  Ward,  16  P.  810,  38  Kan.  452. 

35  De  Ford  v.  Painter,  41  P.  96,  3  Okl.  80,  30  L.  R.  A.  722. 


§§  847-849  WITNESSES  (Ch.  14 

such  a  manner  as  will  not  tend  to  prejudice  the  jury  against  the 
rights  of  the  parties,36  or  indicate  his  opinion  as  to  the  merits  or 
the  credibility  of  witnesses.37 

§  847.     Responsiveness  of  answer 

An  answer  by  the  adverse  party  or  by  a  hostile  witness  should, 
on  request,  be  withdrawn  from  the  jury,  where  it  is  not  responsive 
to  the  question.38  But  where  no  request  has  been  made  for  such 
withdrawal,  an  objection  to  the  question  does  not  justify  a  revers- 
al.89 

Where  one  of  parties  is  an  attorney  at  law  and  testifies  in  his 
own  behalf,  he  is  governed  by  the  same  rules  as  other  witnesses, 
and  should  not  be  allowed  to  make  argument  while  testifying.40 

§  848.     Aids  to  explain  testimony — Diagrams — Computation 

It  is  not  error  to  permit  the  owner  of  land,  while  testifying  as  a 
witness  in  his  own  behalf,  to  introduce  in  evidence  a  diagram 
drawn  by  himself  showing  the  location  of  his  various  improve- 
ments on  the  land,  his  house,  barn,  orchard,  meadow,  cultivated 
land,  etc.,  and  the  relative  location  of  the  railroad  over  the  land 
with  respect  to  these  improvements,  and  to  permit  the  witness  to 
refer  to  the  diagram  in  his  testimony.41  Nor  is  it  error  to  permit  a 
competent  witness  to  compute,  in  the  presence  of  the  court  and 
jury,  the  aggregate  amount  of  an  inventory,  introduced  to  show  the 
amount  of  the  loss,  and  state  the  result  to  the  jury.42 

§  849.     Refreshing  memory 

A  witness  who  makes  memoranda  of  events  at  the  time  of  their 
occurrence,  is  permitted  to  refer,  when  under  examination,  to  such 
memoranda,  to  refresh  his  memory.43  He  may  be  permitted  to  re- 
fresh his  memory  from  a  writing  or  memorandum  made  by  himself 

3«  Howard  v.  Territory,  79  P.  773,  15  Okl.  199 ;  Miller  v.  Territory,  85  P. 
239,  15  Okl.  422,  judgment  reversed  149  F.  330,  79  C.  C.  A.  268,  9  Ann.  Gas. 
389 ;  Going  v.  Shelton  (Okl.)  176  P.  962 ;'  Clark  v.  Phelps,  10  P.  107,  35  Kan. 
43 ;  State  v.  Keehn,  118  P.  851,  85  Kan.  765. 

sr  Smith  v.  State,  12  Okl.  Cr.  513,  159  P.  941. 

ss  Chicago,  K.  &  W.  R.  Co.  v.  Muller,  25  P.  210,  45  Kan.  85. 

so  Chicago,  K.  &  W.  R.  Co.  v.  Woodward,  27  P.  836,  47  Kan.  191. 

40  Bilby  v.  Owen  (Okl.)  181  P.  724. 

*i  Chicago,  K.  &  W.  R.  Co.  v.  Dill,  21  P.  778,  41  Kan.  736. 

42  German  Ins.  Co.  of  Freeport,  111.,  v.  Amsbaugh,  55  P.  481,  8  Kan.  App.  197. 

«  Sanders  v.  Wakefield,  20  P.  518,  41  Kan.  11. 


Art.  2)  EXAMINATION   OP  WITNESSES  §   849 

shortly  after  the  occurrence  of  the  fact  to  which  it  relates ;  but  it 
is  only  when  the  memory  needs  assistance  that  resort  may  be  had 
to  these  aids,  and,  if  the  witness  has  an  independent  recollection  of 
the  facts  inquired  about,  there  is  no  necessity  nor  propriety  in  his 
inspecting  any  writing  or  memorandum.44 

It  is  immaterial  whether  the  memoranda  is  in  such  form  as  to  be 
competent  as  independent  evidence  or  not,  providing  he,  after  re- 
ferring to  same,  has  any  independent  recollection  of  the  subject-mat- 
ter.45 He  may  refresh  his  recollection  from  a -memorandum  made 
under  his  direction;46  that  is,  written  memoranda  of  events  per- 
tinent to  the  issues  in  a  cause,  made  at  the  time  of  their  taking 
place,  when  shown  by  the  oath  of  the  person  making  them  that 
they  were  correct  when  made,  may  be  referred  to,  to  refresh  the 
memory  of  a  witness,  and  may  be  introduced  in  evidence,  not  as 
independent  proof,  but  to  supply  the  details  of  what  the  witness 
has  sworn,47  even  though  made  by  another.48 

An  attorney,  in  stating  what  a  witness,  since  deceased,  testified 

•4;4  State  v.  Baldwin,  36  Kan.  1,  12  Pac.  318. 

In  a  shipper's  action  for  damages  to  a  shipment  of  cattle,  the  report  of  a 
commission  company  was  competent  as  a  memorandum  to  refresh  plaintiff'* 
memory  touching  sums  realized  for  the  dead  and  crippled  cattle  for  which 
suit  was  brought.  Cockrill  v.  Missouri,  K.  &  T.  Ry.  Co.,  136  P.  322,  90  Kan. 
650. 

In  a  prosecution  for  larceny  of  a  state  warrant  and  for  obtaining  a  state 
•warrant)  by  false  representations  as  to  the  amount  of  printing  done  for  the 
state,  held  that,  though  a  witness  retained  no  independent  recollection  of  the 
amount  of  printing  done,  he  could  refresh  his  memory  by  consulting  entries  in 
defendant's  books  on  the  witness  stand.  State  v.  Rule,  11  Okl.  Cr.  237,  144 
P.  807. 

45  McNeely  v.  Duff,  31  P.  1061,  50  Kan.  488. 

46  Wilkes  v.  S.  V.  Clark  Coal  &  Grain  Co.,  148  P.  768,  95  Kan.  493. 
Where,  during  the  trial,  an  officer  who  has  taken  goods  on  legal  process  is 

testifying,  it  is  not  error  to  permit  him  to  refresh  his  memory  from  a  copy 
of  his  return  of  the  process,  made  by  a  typewriter  in  his  presence  and  under 
his  direction.  Flohr  v.  Territory,  78  P.  565,  14  Okl.  477. 

47  First  Nat.  Bank  v.  Yeoman,  78  P.  388,  14  Okl.  626. 

A  witness  who  stepped  land  and  made  memoranda  of  its  dimensions  in  steps 
at  the  time  may  refresh  his  memory  as  to  the  number  of  steps  by  reference 
to  such  memoranda.  Elwell  v.  Purcell,  140  P.  412,  42  Okl.  1. 

4.8  Where  it  appears  from  the  evidence  that  witnesses  have  an  independent 
recollection  as  to  the  transactions  connected  with  the  shipment  and  sale  of  a 
lot  of  hogs,  they  may  refresh  their  memory  as  to  the  number  of  hogs,  and  sell- 
ing price,  by  referring  to  a  memorandum  made  by  another.  Western  Union 
Tel.  Co.  v.  Collins,  53  P.  74,  7  Kan.  App.  97. 

(745) 


§§  849-851  WITNESSES  (Ch.  14 

to  at  a  former  trial,  may  refresh  his  recollection  from  a  bill  of  ex- 
ceptions, or  may  read  from  it,  if  he  knew,  when  he  drew  it,  that 
it  stated  the  testimony  of  the  deceased  witness.49 

Any  writing  used  by  a  witness  to  refresh  his  memory  must  be 
produced  and  shown  to  the  adverse  party,  if  he  requires  it,  who 
may  cross-examine  the  witness  thereon.50 

§  850.     Memoranda  as  evidence 

A  memorandum  made  under  a  witness'  directions  may  be  re- 
ceived in  evidence.51 

Where  it  is  not  shown  that  the  memoranda  were  made  contem- 
poraneously with  the  happening  of  the  events  which  they  describe, 
and  that  the  events  were  correctly  recorded,  it  is  error  to  admit 
them  in  evidence.52 

Where  voluminous  memoranda  as  to  the  number  and  kinds  of 
trees  planted  under  a  contract  with  a  city  had  been  made  by  wit- 
nesses, who  at  the  trial  had  no  independent  recollection  of  the 
facts,  but  could  testify  that  they  knew  of  the  truth  and  accuracy  of 
the  statements  in  the  memoranda  when  they  were  written,  and  that 
they  were  correctly  written,  both  the  testimony  of  the  witnesses 
and  the  memoranda  were  properly  received  in  evidence.53 

§  851.     Stenographer's  notes 

The  rule  requiring  the  best  evidence  to  be  produced  is  not  vio- 
lated by  permitting  the  official  court  stenographer  to  read  from  his 
notes  the  testimony  of  a  witness  in  a  former  trial,  taken  and  re- 
corded by  him  at  the  time,  and  sworn  to  by  him  to  be  correct,  even 
though  he  has  no  independent  recollection  of  such  testimony,  and 
cannot  refresh  his  memory  from  such  notes.54 

A  stenographer  who  took  testimony  of  a  witness  at  a  former  trial 
may  refresh  his  memory  from  the  longhand  transcript  of  the  evi- 

4»  Solomon  R.  Co.  v.  Jones,  8  P.  730,  34  Kan.  443. 

50  Atchison,  T.  &  S.  F.  R.  Co.  v.  Hays,  54  P.  322,  8  Kan.  App.  545. 

6i  Wilkes  v.  S.  V.  Clark  Coal  &  Grain  Co.,  95  Kan.  493,  148  P.  768. 

Book  entries  held  admissible  as  a  means  of  verifying  what  a  witness  stated 
from  memory  as  to  the  transactions  shown  by  the  entries^  State  v.  Rule,  11 
Okl.  Cr.  237,  144  P.  807. 

52  First  Nat.  Bank  of  Enid  v.  Yeoman,  78  P.  388,  14  Okl.  626. 

53  City  of  Garden  City  v.  Heller,  60  P.  1060,  61  Kan.  767. 

54  Cutler  v.  Territory,  56  P.  861,  8  Okl.  101. 

(746) 


Art-  2)  EXAMINATION'   OF    WITNESSES  §§    852-853 

dence  taken.55  Where  the  stenographer's  shorthand  notes  of  tes- 
timony have  been  transcribed  in  longhand,  and  at  the  time  of  so 
doing  he  made  duplicate  carbon  copies  of  the  same,  such  duplicate 
copies  are  not  copies  in  the  sense  in  which  the  word  is  ordinarily 
used,  and  the  use  of  such  carbon  by  a  stenographer  testifying  from 
which  to  refresh  his  memory  is  not  error.69 
§  852.  Recalling  witnesses 

The  refusal  to  permit  a  witness  who  has  testified  for  defendant, 
and  who,  after  the  rebuttal  testimony  6f  plaintiff  has  been  intro- 
duced, is  recalled  by  defendant  for  further  redirect  examination 
to  testify  in  respect  to  a  matter  concerning  which  he  has  been  ex- 
amined when  first  on  the  witness  stand,  is  not  error.57 

DIVISION  II. — CROSS-EXAMINATION 

t 
§  853.     Extent  of  cross-examination 

The  latitude  on  cross-examination  must  depend  on  the  circum- 
stances of  the  case,  and  rests  largely  in  the  discretion  of  the  trial 
court.58  However,  it  is  the  duty  of  the  trial  court  to  confine  the 
cross-examination  of  witnesses  to  proper  channels.50 

35  Harmon  v.  Territory,  79  P.  765,  15  Okl.  147. 

5«  Id. 

57  St.  Louis  &  S.  F.  Ry.  Co.  v.  Vance,  58  P.  233,  9  Kan.  App.  565. 

^8  State  v.  Ross,  94  P.  270,  77  Kan.  341;  Hamilton  v.  Miller,  26  P.  1030.  46 
Kan.  486;  Cobb  v.  Oklahoma  Pub.  Co.,  140  P.  1079,  42  Okl.  314;  Patton  v.  Un- 
ion Traction  Co.,  101  Kan.  388,  167  P.  1041 ;  State  v.  Allen,  160  P.  795,  98  Kan. 
778.  99  Kan.  187. 

That  considerable  latitude,  was  allowed  in  the  cross-examination  of  a  wit- 
ness did  not  constitute  errpr.  State  v.  Patterson,  157  P.  437,  98  Kan.  197. 

Illustrations. — Where,  in  an  agent's  action  for  compensation  and  for  an  ;i<-- 

59  Scott  v.  State,  13  Okl.  Cr.  225,  163  P.  553. 

Where,  on  trial  for  selling  intoxicating  liquor,  a  witness  for  the  state  n^ 
tified  that  he  bought  beer  from  the  defendant,  which  he  drank,  he  cannot,  on 
cross-examination,  be  asked  to  drink  from  a  bottle  of  strange  liquor  proffered 
him,  and  state  if  it  is  the  same  as  that  he  had  previously  purchased.  State  v. 
Snyder,  74  P.  231,  67  Kan.  801. 

An  objection  to  cross-examination  which  required  a  party  to  compare  cer- 
tain gin  weights  of  cotton  with  compi-ess  weights  thereof  and  to  make  mathe- 
matical calculation  and  state  result  was  properly  sustained.  Sapulpa  Co.  v. 
Kimball  &  Reading,  59  Okl.  93,  158  P.  935. 

Refusal  to  permit  further  cross-examination  of  a  witness  held  not  an  abuse 
of  discretion,  where  defendant's  counsel  did  not  state,  that  the  facts  sought 
had  come  to  his  knowledge  since  he  announced  that  he  did  not  desire  to  cros»- 
examine  further.  State  v.  Arch,  157  P.  1198,  98  Kan.  404. 

(747) 


§  853  WITNESSES  (Ch.  14 

On  cross-examination,  a  witness  may  be  asked  questions  to  test 
his  knowledge  as  to  the  matters  concerning  which  he  has  testified, 
or  to  elicit  evidence  favorable  to  the  cross-examiner,  if  the  ques- 

counting.  his  testimony  was  not  clear,  it  was  error  to  refuse  to  permit  him 
to  be  cross-examined  as  to  how  much  he  had  paid  to  defendant's  former  man- 
ager who  had  left  the  state  and  to  whom  plaintiff  testified  on  direct  examina- 
tion he  had  paid  over  certain  collections.  Weleetka  Light  &  Water  Co.  v.  Bur- 
leson,  142  P.  1029,  42  Okl.  748.  On  cross-examination  of  a  plaintiff  claiming 
a  salary  for  personal  services,  it  is  proper  to  direct  questions  against  the  claim 
and  manner  and  form  of  performance  of  such  services,  and  against  faithful- 
ness in  such  performance.  Id. 

Where  defendant's  wife  testified  that  he  was  at  home  with  his  family  at 
the  time  of  the  larceny  but  left  early  the  following  morning,  it  was  compe- 
tent for  the  state  to  ask  on  cross-examination  how  long  it  was  after  the  com- 
mission of  the  crime  before  defendant  returned.  Jones  v.  State,  137  P.  121, 
10  Okl.  Or.  216,  affirming  judgment  on  rehearing  136  P.  182,  10  Okl.  Or.  216. 

Where  a  witness  testified  on  direct  examination  that  he  was  acting  at  the 
instance  of  an  attorney  when  he  procured  a  statement  from  plaintiff  as  to 
his  injuries,  it  was  proper  to  elicit  from  him 'on  cross-examination  that  the 
attorney  represented  an  insurance  company.  Reynolds  v.  New  Century  Min. 
Co.,  133  P.  844,  90  Kan.  208. 

Where  a  witness  of  the  state  testifies  to  a  transaction,  the  defendant  on 
cross-examination  may  bring  out  all  the  facts  in  connection  with  such  trans- 
action within  the  knowledge  of  the  witness.  Rogers  v.  State,  127  P.  365,  8 
Okl.  Cr.  226.  Where  the  state  has  placed  a  witness  on  the  stand,  and  the 
issue  is  self-defense,  defendant  can  ask  witness  on  cross-examination  as  to 
whether  deceased  drank  any  intoxicating  liquor  while  he  was  with  him.  Id. 
Where  a  witness  testified  to  a  transaction  or  a  part  of  it,  the  opposing  party 
may  on  cross-examination  bring  out  anything  that  happened  during  the  time 
covered  by  the  testimony.  Id. 

A  question  inquiring  of  relatrix  if  she  had  not  testified  a  certain  way  in 
another  court  held  proper  cross-examination.  State  v.  Creager,  155  P.  29,  97 
Kan.  334. 

In  an  action  against  a  railroad  for  personal  injury,  where  the  issue  was 
whether  the  train  dispatcher  was  negligent  in  giving  an  order  to  a  conductor 
to  meet  another  train  composed  of  two  sections,  and  to  establish  the  negli- 
gence of  the  train  dispatcher  the  conductor  testified  that,  until  he. saw  the 
second  section  of  the  train  he  had  orders  to  meet,  he  had  no  knowledge  that 
said  section  was  on  the  road,  held,  that  on  cross-examination  it  was  compe- 
tent to  ask  him  if  he  understood  the  signals  carried  by  the  first  section ;  if,  by 
those  signals,  he  knew  there  was  a  second  section  following,  which  had  the 
right  to  the  road ;  and  if  he  had  the  right  to  leave  the  station  in  the  face  of 
the  signals  carried  by  the  first  section.  Hannibal  &  St.  J.  R.  Co.  v.  Kanaley, 
17  P.  324,  39  Kan.  1. 

In  an  action  against  a  sheriff  for  the  value  of  goods  seized  by  him  under 
an  attachment  and  sold,  plaintiff  claimed  to  have  bought  the  goods  from  the 
debtor  prior  to  the  levy  of  attachment,  and  to  have  paid  for  the  same  by  the 
execution  and  delivery  to  the  insolvent  debtor  of  two  notes,  signed  by  him- 
self, one  for  $1,100  and  the  other  for  $1,200,  and  that  the  $1,100  note  was  de- 

(748) 


Aft.  2)  EXAMINATION   OF   WITNESSES  §    853 

tions  are  not  otherwise  objectionable.60  He  may  be  asked  any 
question  which  reasonably  tends  to  explain  his  testimony  in  chief,81 
but  should  not  be  asked  questions  which  are  full  of  insulting  insin- 
uations and  intimations  that  he  is  guilty  of  crime.62 

Great  latitude  should  be  allowed  on  the  cross-examination  of  a 
witness  where  it  is  claimed,  that  his  testimony  is  affected  by  the 
friendship  or  enmity  he  has  toward  either  party  in  the  action ;  and, 
as  a  general  rule,  the  party  against  whom  a  witness  is  produced 

livered  to  parties  who  had  indorsed  for  the  insolvent  debtors  as  collateral  se- 
curity for  such  indorsements.  Held  that  it  is  error  for  the  trial  court,  when 
one  of  such  persons  was  on  the  witness  stand,  to  refuse  to  permit  the  attor- 
ney for  the  sheriff  to  ask  him  if  the  note  was  paid,  and  how  paid,  and  by 
whom  paid ;  and  it  is  also  error  to  refuse  to  make  the  purchaser  answer  ques- 
tions as  to  whether  or  not  there  was  also  an  understanding  between  him  and 
the  insolvent  debtor  that,  if  he  lost  this  suit,  he  would  not  have  to  pay  the 
)$1,200  note,  and  as  to  whether  the  $1,200  note  was  paid,  or  was  to  be  paid. 
De  Ford  v.  Orvis,  21  P.  1105,  42  Kan.  302. 

In  an  action  attacking  a  bill  of  sale  as  fraudulent,  where  a  witness  testifies 
for  the  parties  upholding  the  bill  that  about  the  time  it  was  made  executions 
were  issued  against  him,  that  he  was  in  possession  of  the  property,  and  that 
his  attorney  came  to  his  place,  and  drew  up  the  bill,  it  is  competent  on  cross- 
examination  to  ask  him  if  the  bill  was  not  given  simply  as  security.  McClus- 
key  v.  Cubbison,  57  P.  496,  8  Kan.  App.  857.  It  is  proper  to  ask  such  witness 
whether  he  and  the  attorney  had  made  an  inventory  of  the  goods,  as  show- 
ing whether  the  transaction  was  unusual  or  not.  Id. 

In  replevin,  defendant  admitted  receiving  certain  money  at  the  time  a  mort- 
gage was  executed  by  him,  but  contended  that  no  part  thereof  was  intended 
to  be  secured  by  such  mortgage.  Held  that  on  cross-examination  of  plaintiff, 
defendant  could  bring  out  facts  tending  to  show  that  independent  of  the 
mortgage,  moneys  loaned  to  defendant  were  paid  by  him  to  plaintiff.  First 
Bank  of  Hoffman  v.  Harrison,  116  P.  789,  29  Okl.  302. 

In  a  homicide  case,  where  accused  offered  a  witness  who  testified  that  he 
had  heard  decedent  make  threats  against  accused,  and  that  witness  commu- 
nicated such  threats  to  accused  before  the  difficulty  occurred,  the  state  on 
cross-examination  could  ask  such  witness  what  accused  said,  if  anything, 
when  he  was  informed  of  the  alleged  threats.  Smith  v.  State,  114  P.  350,  5 
Okl.  Or.  282. 

Where  attachment  affidavit  states  grounds  which  are  conceded  to  be  un- 
true, and  affiant  is  witness  for  plaintiff,  it  is  not  error  to  permit  cross-exam- 
ination as  to  falsity  of  statements  in  the  affidavit.  Farmers'  Product  &  Sup- 
ply Co.  v.  Bond,  61  Okl.  244,  161  P.  181. 

In  action  for  injuries  in  runaway  caused  by  fright  of  horse  at  escaping 
steam,  cross-examination  of  plaintiff  as  to  the  disposition  of  the  horse  was 
proper.  Talliaferro  v.  Atchison,  T.  &  S.  F.  By.  Co.,  61  Okl.  27,  160  P.  69. 

so  Policy  v.  Kansas  City  Oil  Co.,  131  P.  577,  89  Kan.  272. 

61  Hopkins  v.  State,  9  Okl.  Cr.  104,  130  P.  1101,  Ann.  Cas.  1915B,  736. 

62  Hager  v.  State,  10  Okl.  Cr.  9,  133  P.  263. 

(749) 


§  853  WITNESSES  (Ch.  14 

has  a  right  to  show  everything  which  may  in  the  slightest  degree 
affect  his  credibility.63 

Where  a  witness  is  incompetent,  for  want  of  knowledge,  to  tes- 
tify concerning  the  matters  as  to  which  he  is  called,  and  testifies  to 
nothing  material  to  the  issue,  it  is  not  error  to  refuse  to  permit  him 
to  be  cross-examined.04  Likewise  where  a  voluntary  statement  is 
made  by  a  witness  upon  immaterial  matter,  though  such  statement 
is  not  objected  to,  it  is  not  error  for  the  court  to  refuse  to  permit 
a  cross-examination  with  regard  to  the  matter  referred  to  therein.03 

On  the  question  of  the  quantum  of  damages  recoverable,  where 
the  testimony  consists  mostly  of  expressions  of  opinion,  great  lati- 
tude of  cross-examination  is  permissible.66  An  attorney,  whose 
claim  of  lien  upon  a  fund  is  denied  because  the  court  is  convinced 
that  he  has  performed  no  services  entitling  him  thereto,  has  no 
standing  to  complain  of  a  refusal  to  allow  him  to  cross-examine 
.the  makers  of  affidavits  used  by  other  claimants.67 

The  trial  court  should  exercise  sound  discretion  in  limiting  the 
cross-examination  of  plaintiffs  witnesses  testifying  as  to  value  of 
property  when  it  is  sought  to  draw  out  a  detailed  description  of 
various  other  properties  in  the  vicinity.68 

In  a  personal  injury  case,  the  plaintiff,  on  cross-examination, 
should  be  required  to  answer  the  question  whether  he  is  willing 
to  submit  to  a  physical  examination  by  reputable  physicians,  acting 
under  the  appointment  of  the  court.69 

Where  an  action  is  commenced  by  the  holder  of  a  note  claiming 
to  be  an  innocent  purchaser,  who,  instead  of  resting  on  the  prima 
facie  effect  of  the  note,  presents  the  payee  as  a  witness  to  establish 
his  ownership  and  right  to  negotiate  such  note,  the  witness  will 
be  subject  to  a  cross-examination  as  in  other  cases.70 

«3  State  v.  Collins,  5  P.  368,  33  Kan.  77. 

On  cross-examination  of  state's  witness,  the  defendant  may  show  bias  and 
contradictory  statements.  Yoder  v.  State  (Okl.  Cr.  App.)  197  P.  848. 

e*  Watkins  v.  United  States,  50  P.  88,  5  Okl.  729. 

65  Cone  v.  Smyth,  45  P.  247,  3  Kan.  App.  607. 

ee  Central  Branch  U.  P.  R.  Co.  v.  Andrews,  2  P.  677,  30  Kan.  590. 

67  Ricardo  v.  Central  Coal  &  Coke  Co.,  171  P.  351,  102  Kan.  170. 

es  Wichman  v.  Kansas  City,  M.  &  O.  Ry.  Co.,  114  P.  212,  84  Kan.  339. 

6»  Chicago,  R,  I.  &  P.  Ry.  Co.  v.  Hill,  129  P.  13,  36  Okl.  540,  43  L.  R.  A.  (N. 
S.)  622;  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Melson,  40  Okl.  1,  134  P.  388,  Ann. 
Cas.  1915D,  760. 

v.  Dial,  93  P.  GOG,  77  Kau.  8. 


(750) 


Art.  2)  EXAMINATION  OF   WITNESSES  §§   853~854 

Where  a  witness  on  direct  examination  is  interrogated  relative  to 
a  conversation,  the  opposing  party  may  draw  out  all  the  material 
portions  of  such  conversation  pertinent  to  the  issues  on  cross-ex- 
amination, and  the  acts  and  conduct  of  a  witness  variant  from  his 
testimony,  and  inconsistent  therewith,  may  be  shown  to  weaken 
his  testimony.71 

Where  material  testimony  of  a  witness  for  the  state  was  declared 
by  the  witness  to  rest  on  a  memorandum  made  by  him  in  a  book 
not  produced  in  court,  it  was  error  to  limit  the  cross-examination 
in  respect  to  the  alleged  memorandum  book.72 

§  854.     Limitation  to  subjects  of  direct  examination 

Except  as  affecting  his  credibility,73  a  witness  cannot  be  proper- 
ly cross-examined  as  to  matters  not  directly  connected  with  the 
facts  testified  to  in  chief,74  although  the  matters  concern  transac- 
tions connected  with  the  facts  in  controversy.76 

71  Gibbons  v.  Territory,  115  P.  129,  5  Okl.  Cr.  212. 

72  State  v.  Shew,  57  P.  137,  8  Kan.  App.  679. 

73  Reeves  &  Co.  v.  Brown,  102  P.  840,  80  Kan.  292. 

The  exceptions  are  where  the  questions  tend  to  show  interest,  bias,  or  prej- 
udice, or  to  explain,  modify,  or  qualify  former  statements.  Lawder  v.  Hin- 
derson,  14  P.  164,  36  Kan.  754. 

The  extent  of  the  cross-examination  of  a  witness,  though  extending  to  mat- 
ters not  inquired  about  in  the  examination  in  chief,  is  largely  within  the  dis- 
cretion of  the  court.  Harrold  v.  Territory,  89  P.  202,  18  Okl.  395,  10  L.  R.  A. 
(N.  S.)  604,  11  Ann.  Cas.  818,  judgment  reversed  169  F.  47,  94  C.  C.  A.  415,  17 
Ann.  Cas.  868.  The  cross-examination  of  a  witness  should  be  confined  to  mat- 
ters concerning  which  the  witness  has  been  examined  in  chief,  but  he  may 
be  asked  any  question  which  reasonably  tends  to  explain,  contradict,  or  dis- 
credit his  testimony  or  to  test  his  memory  or  veracity.  Id. 

74  Kuhn  v.  Johnson,  137  P.  990,  91  Kan.  188;   Chicago,  R.  I.  &  P.  Ry.  Co.  v. 
Beatty,  34  Okl.  321,  118  P.  367,  42  L.  R.  A.  (N.  S.)  984 ;  Maier  v.  Randolph,  6 
P.  625,  33  Kan.  340 ;  Prosser  v.  Pretzel,  55  P.  854,  8  Kan.  App.  856 ;  Woods  v. 
Faurot,  77  P.  346,  14  Okl.  171 ;  State  v.  Hoerr,  129  P.  153,  88  Kan.  573 ;  Coon 
v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  89  P.  682,  75  Kan.  282. 

In  an  action  against  a  city  for  personal  injuries  caused  by  a  defective  side- 
walk, a  question  on  cross-examination  as  to  whether  the  street,  at  the  place 
where  the  accident  occurred,  was  not  lighter  than  elsewhere,  is  properly  ex- 
cluded when  there  was  nothing  said  in  regard  to  light  in  the  direct  examina- 
tion of  the  witness.  City  of  Atchison  v.  Rose,  23  P.  561,  43  Kan.  605. 

The  testimony  of  a  witness  upon  direct  examination  merely  identifying  a 
certificate  of  deposit  of  money,  and  the  signature  of  the  payee  thereof,  with 
a  statement  that  such  certificate  had  been  paid  by  the  bank  issuing  it,  does 

75  State  v.  Long,  103  Kan.  302,  175  P.  145. 

(751) 


§§  854-855  WITNESSES  (Ch.  14 

A  party  desiring  his  testimony  as  to  other  facts  should  make 
him  his  own  witness.76  However,  this  rule  should  be  enforced 
with  discretion.77 

,  The  cross-examination  of  a  witness  is  not  to  be  confined  to  the 
particular  questions  asked,  nor  the  precise  subject  called  to  his 
attention  on  direct  examination,  but  may  extend  to  any  matter  not 
foreign  to  the  subject-matter  of  such  examination  and  tending  to 
limit,  explain,  or  modify  it,  and  testimony  tending  to  show  the  in- 
terest or  bias  to  witness  or  lack  of  it,  drawn  out  on  cross-examina- 
tion, is  not  collateral.78 

§  855.     Collateral  and  irrelevant  matters 

Cross-examination  as  to  purely  collateral  or  irrelevant  matters 
should  not  be  permitted.79 

not  authorize  a  cross-examination  as  to  the  ownership  of  the  money  repre- 
sented by  it.  Wright  v.  Wright,  50  P.  444,  58  Kan.  525. 

In  replevin  by  a  wife  to  recover  property  seized  by  a  creditor  of  the  hus- 
band, where  the  husband  testified  for  plaintiff  only  as  to  the  demand  and  the 
bringing  of  suit,  he  could  not  be  cross-examined  as  to  previous  statements 
made  by  him  concerning  the  property.  Butler  v.  Cooper,  42  P.  839,  3  Kan. 
App.  145. 

In  a  will  contest  the  court  properly  confined  the  cross-examination  to  mat- 
ters covered  by  the  direct  examination.  Kerr  v.  Kerr,  116  P.  880,  85  Kan.  460. 

It  is  not  error  to  allow  a  witness  for  the  plaintiff,  who,  in  his  direct  ex- 
amination, testifies  that  he  collected  certain  freight  bills  of  the  defendant,  to 
tell  the  amount  he  so  collected,  on  cross-examination.  E.  Rothschild  &  Bros, 
v.  Hays,  59  P.  660,  9  Kan.  App.  193. 

76  Seifert  v.  Schaible,  105  P.  529,  81  Kan.  323. 

77  The  course  and  extent  of  the  cross-examination  of  a  witness,  relative  to 
matters  not  inquired  about  in  his  examination  in  chief,  is  largely  within  the 
sound  discretion  of  the  trial  court.    Hopkins  v.  State,  9  Okl.  Or.  104,  130  P. 
1101. 

78  Gibbons  v.  Territory,  115  P.  129,  5  Okl.  Or.  212. 

7»  In  a  prosecution  for  statutory  rape,  where  evidence  has  been  introduced 
in  corroboration  of  the  complaining  witness,  it  is  not  necessarily  error  to  sus- 
tain objections  to  questions  asked  of  her  on  cross-examination  as  to  her  re- 
lations with  other  men;  no  attempt  being  made  to  show  any  other  paternity 
of  the  child  born  to  her.  State  v.  Gereke,  86  P.  160,  74  Kan.  196,  judgment 
reversed  on  rehearing  Same  v.  Gerike,  87  P.  759,  74  Kan.  196. 

In  an  action  to  recover  damages  for  an  assault,  it  was  not  error  to  refuse 
to  allow  defendant  to  cross-examine  one  of  plaintiff's  witnesses  by  asking  if 
the  manner  and  actions  of  plaintiff  led  the  witness  to  believe  that,  if  she  got 
the  gun,  she  would  shoot  defendant,  where  defendant's  answer  averred  that 
he  struck  plaintiff,  if  at  all,  while  repelling  an  assault  on  himself,  as  the  evi- 
'clence  called  for  was  immaterial.  Allen  v.  Lizer,  58  P.  238,  9  Kan.  App.  548. 

It  was  shown  on  cross-examination  of  one  of  the  state's  witnesses  that  such 

(752) 


Art.  2)  EXAMINATION   OF   WITNESSES  §§   856~858 

§  856.     Character  witness 

Where  a  witness  testifies  as  to  defendant's  general  reputation, 
considerable  latitude  may  be  given  in  cross-examination  as  to  his 
opportunity  for  knowledge  thereof.80 

Witnesses  who  have  testified  favorably  to  defendant's  general 
reputation  as  to  peace  and  good  conduct  may  be  asked  on  cross- 
examination  whether  they  have  not  heard  reports  of  particular  acts 
inconsistent  with  such  reputation.81 

§  857.     Cross-examination  of  party 

The  latitude  allowed  in  the  cross-examination  of  a  party  as  a  wit- 
ness, tending  to  test  his  veracity  or  on  matters  directly  connected 
with  the  subject  of  his  examination  in  chief,  rests  in  the  sound  dis- 
cretion of  the  trial  court,  and  will  not  be  controlled  on  appeal,  ex- 
cept in  cases  of  abuse  of  discretion.82 

§  858.     Recalling  witness 

The  court  may  in  its  discretion  permit  a  witness  to  be  recalled 
for  further  cross-examination.83 

witness  had  been  charged  with  bastardy,  tried,  and  acquitted.  Held,  that  a 
question  as  to  who  made  the  complaint  was  immaterial.  State  v.  Stockman, 
58  P.  1006,  9  Kan.  App.  888. 

In  prosecution  for  manslaughter,  cross-examination  of  defendant's  witness 
as  to  his  statement  in  another's  presence  that  he  knew  that  defendant  would 
kill  deceased,  tending  only  to  prove  witness'  opinion,  was  collateral  and  ir- 
relevant. Willis  v.  State,  13  Okl.  Cr.  700,  167  P.  333. 

Cross-examination  of  deputy  sheriff  to  show  that  justice  of  peace  receiving 
defendant's  waiver  of  examination  had  filed  no  bond  since  his  last  election 
was  properly  excluded.  State  v.  Sweet,  101  Kan.  746,  168  P.  1112.  In  prose- 
cution for  murder,  cross-examination  of  state's  witnesses  as  to  some  "Bill 
Smith"  who  was  in  neighborhood  when  murder  was  committed,  and  as  to 
whether  such  p  man  later  appeared  with  scratches  on  his  face  and  a  black  eye, 
was  improper.*  Id. 

Whether  a  fact  inquired  of  on  cross-examination  is  collateral  depends  upon 
whether  the  examining  party  might  prove  it  as  a  part  of  his  case  to  establish 
his  plea.  Willis  v.  State,  13  Okl.  Cr.  700,  167  P.  333.  ' 

so  state  v.  Pipes,  70  P.  363,  65  Kan.  543. 

A  witness  in  a  criminal  case,  who  testified  to  the  fair  reputation  of  defend- 
ant for  honesty,  may  be  cross-examined  as  to  whether  he  had  not  heard  of  de- 
fendant's being  arrested  for  larceny.  State  v.  McDonald,  46  P.  966,  57  Kan. 
537. 

*i  State  v.  Killion,.  148  P.  643,  95  Kan.  371. 

82  Bassett  v.  Glass,  70  P.  336,  65  Kan.  500. 

Questions  propounded  on  cross-examination  of  plaintiff  as  to  conversations 

SB  state  v.  Lewis,  43  P.  265,  56  Kan.  374. 

HON.PL.&  PEAC.— 48  (753) 


§  859  WITNESSES  (Ch.  14 

DIVISION  III. — REDIRECT  EXAMINATION 

§  859.     Scope  and  extent 

Where  a  matter  of  evidence  is  brought  out  for  the  first  time  on 
the  cross-examination  of  a  witness,  the  other  party  may  re-examine 
upon  the  same  matter.84 

Where  a  witness  takes  the  stand  and  testifies  as  to  matters  about 
which  he  is  competent  to  testify,  and  the  other  party  on  cross- 
examination  inquires  of  him,  over  the  objections  of  the  party  pro- 
ducing him,  as  to  matters  about  which  he  is  incompetent  to  testify, 
such  party  will  not  be  heard  to  say  that  the  court  committed  error 
in  permitting  such  witness  on  redirect  examination  to  explain  the 
transactions  elicited  on  cross-examination,  even  though  as  to  such 
matters  the  witness  was  incompetent.85  But  matters  which  are 
entirely  new,  so  far  as  his  testimony  is  concerned,  cannot  be  brought 
out  on  redirect  examination.86 

It  was  error,  in  an  action  against  a  railroad  company  to  recover 
damages  resulting  from  a  fire  set  by  a  locomotive,  to  permit  a  wit- 
ness who  testified  for  plaintiff  to  explain  his  apparent  hostility  to 
the  company  by  stating  that  it  had  refused  to  settle  claims  inter- 
posed against  it  by  him  on  an  equitable  basis.8.7 

between  him  and  third  persons  were  properly  excluded.  Musick  v.  Enos,  148 
P.  624,  95  Kan.  397. 

Where  plaintiff  was  called  as  a  witness  by  defendant  in  an  action  for  the 
death  of  her  husband  at  a  street  crossing  and  testified  that  she  had  often  been 
over  it  with  him,  she  was  properly  allowed  on  cross-examination  to  testify 
that  he  always  drove  carefully  and  at  night  always  stopped  to  look  and  listen. 
Fike  v.  Atchison,  T.  &  S.  F.  Ry.  Co..  133  P.  871,  90  Kan.  409. 

s*  Hamilton  v.  Miller,  26  P.  1030,  46  Kan.  486. 

ss  Veseley  v.  Engelkeinier,  61  P.  924,  10  Okl.  290. 

se  In  February,  C.  purchased  goods  from  plaintiff  company  on  credit,  and 
in  the  following  May  made  a  contract  with  plaintiff's  agent,  which  was  in- 
tended by  both  parties  to  be  a  sale  of  the  property  back  to  plaintiff.  On  a 
trial  for  the  conversion  of  the  goods,  one  of  defendants,  who  took  possession 
under  a  mortgage  from  C.,  was  asked  on  his  redirect  examination  if  he  took 
an  inventory  of  the  stock  at  the  time  he  took  possession  of  it,  which  was  the 
time  of  the  alleged  conversion,  and,  having  answered  in  the  affirmative,  was 
asked  to  state  its  actual  cash  value  at  that  time  which  was  objected  to  as  not 
proper  redirect  examination.  Held  that,  as  on  his  examination  in  chief  the 
witness  was  not  asked  in  regard  to  the  value  of  the  prbperty,  and  the  ques- 
tion involved  new  facts  so  far  as  his  testimony  was  concerned,  the  objection 
was  properly  sustained.  Robinson  v.  Peru  Plow  &  Wheel  Co.,  31  P.  988,  1 
Okl.  140. 

87  Atchisou,  T.  &  S.  F.  R.  Co.  v.  Briggs,  43  P.  289,  2  Kan.  App.  154. 

(754) 


Art.  3)  COMPETENCY  AND  PRIVILEGE  §   860 

ARTICLE  III 

« 

COMPETENCY  AND  PRIVILEGE 

Sections 

860.  In  general. 

861.  Knowledge — Signature — Books    and    accounts. 

862.  Persons  Interested. 

863.  Adverse  party. 

864.  Incompetents. 

865.  Husband  and  wife. 

866.  Attorney  and  client. 

867.  Clergyman  or  priest. 

868.  Physician  and  patient. 

869.  Construction  of  statutes. 

870.  Conviction  of  crime. 

871.  Self-incrimination. 

872.  Waiver. 

873.  Transactions  with  decedent. 

874.  Witness  privileged  from  being  sued. 

§  860.     In  general 

The  competency  of  a  witness  is  for  the  court  and  not  for  the 
jury.88 

One  entirely  ignorant  of  the  meaning  of  the  ceremony  of  admin- 
istering an  oath  is  not  a  competent  witness.89 

A  witness  is  not  rendered  incompetent  to  testify  by  reason  of  his 
disbelief  in  the  existence  of  God.00 

The  trial  judge  cannot,  over  objection,  give  material  testimony 
for  a  litigant.91 

The  secrecy  imposed  by  the  common  law  and  statutes  on  pro- 
ceedings before  a  grand  jury  will  not  prevent  the  public  or  an  indi- 
vidual from  proving  by  members  of  the  jury  what  passed  before  it 
when,  after  the  purpose  of  secrecy  has  been  effected,  such  disclo- 

ss  Western  Nat.  Life  Ins.  Co.  v.  Williamson-Halsell-Frazier  Co.,  131  P.  <><ti. 
37  OkL  213. 

When  a  witness  is  objected  to  on  the  ground  that  he  or  she  is  incompetent 
by  reason  of  want  of  intelligence,  it  is  the  province  of  the  trial  court  to  de- 
termine the  witness'  competency.  Adams  v.  State,  114  P.  ,'547,  5  Qkl.  Cr.  347. 

so  Lee  v.  Missouri  Pac.  Ry.  Co.,  73  P.  110,  67  Kan.  402,  63  L.  R.  A.  271. 

so  Dickinson  v.  Beal,  62  P.  724,  10  Kan.  App.  233. 

91  Powers  v.  Cook,  48  Ok).  43,  149  P.  1121,  L.  R.  A.  1917F,  766. 

A  district  judge  is  not  competent  as  a  witness  in  a  cause  tried  before  him. 
Gray  v.  Crockett,  10  P.  452,  35  Kan.  66,  rehearing  denied  12  P.  12!).  :\'j  Kan. 
686. 

(755) 


§§  860-861  WITNESSES  (Ch.  14 

sure  becomes  necessary  in  the  furtherance  of  justice  or  the  protec- 
tion of  public  or  individual  rights.92 

Where  a  defendant  is  prosecuted  for  perjury,  members  of  the 
grand  jury  are  competent  witnesses  to  testify  orally  as  to  the  state- 
ments made  by  the  defendant  before  the  grand  jury.93 

§  861.     Knowledge — Signature — Books  and  accounts 

A  witness  must  have  actual  knowledge  of  the  facts  about  which 
he  is  called  upon  to  testify.94 

92  state  v.  Campbell,  85  P.  784,  73  Kan.  688,  9  L.  R.  A.  (N.  S.)  533,  9  Ann. 
<?as.  1203. 

93  Pilgrim  v.  State,  104  P.  383,  3  Okl.  Or.  49. 

94  On    a  trial  for  obtaining  property  by  means  of   a  worthless  check,   the 
cashier    of  the  bank  on  which  it  was  drawn,  under  whose  supervision    the 
bank's  books  were  kept,  was  competent  to  testify  that  defendant  had  no  mon- 
ey subject  to  check,  though  his  knowledge  was  gained  from  the  books.     State 
v.  McCormick,  46  P.  777,  57  Kan.  440,  57  Am.  St.  Rep.  341. 

It  is  not  error  to  refuse  to  permit  a  witness  to  testify  as  to  the  grade  or 
value  of  cotton  in  Galveston,  where  he  did  not  class  the  cotton  at  the  time 
it  was  shipped  by  'him,  and  did  not  know  its'  value  at  the  time  in  question. 
Smoot  &  Abbott  v.  W.  L.  Moody  &  Co.,  125  P.  1134,  34  Okl.  522. 

Where  it  is  not  shown  that  a  party  is  acquainted  with,  or  has  any  knowl- 
edge whatever  of,  the  chattel  mortgage  records  or  of  any  records  of  the  reg- 
ister of  deeds'  office,  except  that  he  has  -inspected  the  records,  and  he  is  not 
the  register  of  deeds,  or  any  deputy  thereof,  it  is  not  error  to  refuse  to  allow 
him  to  testify  that  a  certain  mortgage  is  not  recorded.  Buxton  v.  Alton-Daw- 
son  Mercantile  Co.,  90  P.  19,  18  Okl.  287. 

Carriers. — In  an  action  against  a  connecting  carrier  for  loss  of  goods,  a 
witness  who  had  no  knowledge  of  the  weight  of  the  car  when  delivered  to  the 
connecting  carrier,  and  had  never  been  in  its  employ,  and  was  not  connected 
with  the  execution  of  the  waybill,  could  not  testify  as  to  the  weight  of  the 
car  from  the  bill  when  received  by  the  connecting  carrier.  St.  Louis,  I.  M.  & 
S.  Ry.  Co.  v.  Carlile,  128  P.  690,  35  Okl.  118. 

Where  a  person  has  lived  several  months  on  a  farm  near  a  railroad  cross- 
ing of  a  public  highway,  and  his  business  requires  him  to  cross  the  track  fre- 
quently, and  he  is  able  to  tell  the  time  the  regular  trains  pass  the  crossing, 
he  is  competent  to  testify  whether  a  particular  train  is  an  irregular  or  extra 
one.  Missouri  Pac.  Ry.  Co.  v.  Stevens,  12  P.  25,  35  Kan.  622. 

In  an  action  for  damages  from  delay  in  a  shipment  of  cattle,  a  witness  could 
testify  as  to  what  was  a  reasonable  time  to  transport  cattle  between  two  cer- 
tain points,  where  the  question  was  objected  to,  "unless  the  witness  knows 
exactly  the  time  our  trains  are  run"  between  those  points.  St.  Louis  &  S.  F. 
R.  Co.  v.  Peery,  138  P.  1027,  40  Okl.  432. 

Reputation. — It  is  a  sufficient  predicate  for  admission  of  reputation  evidence 
that  witness  has  sworn  that  he  knows  general  reputation  of  place  involved  in 
prosecution  for  unlawful  possession  of  liquors  for  the  particular  kind  of  bus- 
iness, provided  such  general  reputation  relates  to  time  of  offense  and  to  lo- 
"cality,  and  is  material.  Ward  v.  State,  15  Okl.  Cr.  150,  175  P.  557. 
(756) 


Art.  3)  COMPETENCY  AND  PRIVILEGE  §§   861-862 

Before  a  witness  can  testify  to  a  signature  on  a  written  instru- 
ment, it  must  appear  that  the  witness  saw  the  instrument  execut- 
ed, that  he  was  acquainted  with  the  signature  of  the  party,  or  that 
he  is  competent  to  testify  by  reason  of  comparison  with  other  sig- 
natures known  to  be  genuine.95 

A  witness  who  has  not  kept  the  books  or  the  pay  rolls,  and  who 
has  no  recollection  of  the  facts  independently  of  them,  cannot  state 
the  contents  of  such  books  or  pay  rolls.96 

It  is  not  competent  to  prove  the  condition  of  a  long  account  be- 
tween a  bank  and  one  of  its  customers  by  the  oral  testimony  of  the 
cashier  of  the  bank,  where  it  is  not  shown  that  the  cashier  is  the 
bookkeeper,  or  that*  the  books  are  kept  under  his  supervision,  or 
that  he  has  any  knowledge  of  .such  books.97 

An  objection  to  evidence  on  the  ground  that  it  is  incompetent 
does  not  go  to  the  competency  of  the  witness.98 

§  862.     Persons  interested 

"No  person  shall  be  disqualified  as  a  witness  in  any  civil  action  or 
proceeding,  by  reason  of  his  interest  in  the  event  of  the  same,  as 
a  party  or  otherwise,  or  by  reason  of  his  conviction  df  a  crime ;  but 
such  interest  or  conviction  may  be  shown  for  the  purpose  of  af- 
fecting his  credibility."  99 

It  is  not  improper  for  officers  charged  with  the  enforcement  of  the 
law  to  employ  detectives  to  procure  evidence  for  the  prosecution  of 
those  who  violate  the  law,  so  as  to  render  their  testimony  inadmis- 
sible.1 

"Nothing  in  the  preceding  section  contained  shall,  in  any  man- 
ner, affect  the  laws  now  existing,  relating  to  the  settlement  of 

06  Miller  v.  Thompson,  50  Okl.  643,  151  P.  192. 

so  Paola  Gas  Co.  v.  Paola  Glass  Co.,  44  P.  621,  56  Kan.  614,  54  Am.  St  Rep. 
598. 

97  Mann  v.  Second  Nat.  Bank  of  Springfield,  10  P.  150,  34  Kan.  746. 

»8  City  of  Topeka  v.  Griffey,  51  P.  296,  6  Kan.  App.  920. 

90  Rev.  Laws  1910,  §  5046. 

Under  Code  Civ.  Proc.  §  317  (Gen.  St.  1909,  §  5911),  witnesses  are  not  dis- 
qualified, though  directly  or  indirectly  interested  in  outcome  of  lawsuit ;  their 
interest  affecting  only  their  credibility.  Meador  v.  Manlove,  156  P.  731,  97 
Kan.  706 ;  Hess  v.  Hartwig,  112  P.  99,  83  Kan.  592. 

That  purchases  of  liquors  were  made  by  persons  seeking  to  ascertain  M  the 
seller  was  engaged  in  the  unlawful  sale  thereof  does  not  render  the  testimony 
of  such  purchasers  incompetent.  State  v.  Spiker,  129  P.  195,  88  Kan.  644. 

i  De  Graff  v.  State,  103  P.  538,  2  Okl.  Cr.  519. 

(757) 


§§  863-865  WITNESSES  (Ch.  14 

estates  of  deceased  persons,  infants,  idiots  or  lunatics,  or  the  attes- 
tation of  the  execution  of  last  wills  and  testaments,  or  of  convey- 
ances of  real  estate,  or  of  any  other  instrument  required  by  law  to  be 
attested."  2 

§  863.     Adverse  party 

"Any  party  to  a  civil  action  or  proceeding  may  compel  any  ad- 
verse party  or  person,  for  whose  benefit  such  action  or  proceeding 
is  instituted,  prosecuted  or  defended,  at  the  trial,  or  by  deposition, 
to  testify  as  a  witness  in  the  same  manner,  and  subject  to  the  same 
rules,  as  other  witnesses."  3 

§  864.     Incompetents 

Among  the  persons  incompetent  to  testify  are  "persons  who  are 
of  unsound  mind  at  the  time  of  their  production  for  examination,"  4 
and  "children  under  ten  years  of  age  who  appear  incapable  of  re- 
ceiving just  impressions  of  the  facts  respecting  which  they  are  ex- 
amined, or  of  relating  them  truly."  5 

The  question  of  the  competency  of  a  witness  of  tender  age  is  ad- 
dressed to  the  trial  court's  discretion,13  and  may  be  determined  during 
its  examination  rather  than  before  its  examination.7 

§  865.     Husband  and  wife 

Husband  and  wife  are  incompetent  to  testify  "for  or  against  each 
other,  except  concerning  transactions  in  which  one  acted  as  the 

-  Rev.  Laws  1910,  §  5047. 
s  Rev.  Laws  1910,  §  5048. 

'*  Code  Civ.  Proc.  (St.  1893)  §  335,  relating  to  the  competency  as  witnesses 
of  "persons  of  unsound  inind,"  means  persons  whose  minds  are  so  defective 
that  they  cannot  correctly  relate  facts,  and  do  not  understand  or  realize  what 
they  are  saying  or  doing.  The  trial  court  must  determine,  on  examination  of 
the  witness,  and  from  other  evidence,  if  necessary,  as  to  his  competency.  City 
of  Guthrie  v.  Shaffer,  54  P.  698,  7  Okl.  459. 

s  Rt\v,  Daws  1910,  §  5050. 

G  Seigler  v.  State,  11  Okl.  Or.  131,  145  P.  308. 

The  question  of  the  competency  of  a  Avitness  under  ten  years  of  age  is  ad- 
dressed peculiarly  to  the  discretion  of  the  trial  court.  Darneal  v.  State,  14 
Okl.  Cr.  540,  174  P.  290,  1  A.  L.  R.  G38;  Collins  v.  State,  15  Okl.  Cr.  9(5,  375 
P.  124. 

Whether  child  of  fiva  years  is  competent  to  testify  is  ordinarily  question  for 
final  .determination  by  trial  court.  State  v.  Gaunt,  157  P.  447,  98  Kan.  180. 

A  nine  year  old  child  held  competent  to  testify.  Walker  v.  State,  12  Okl. 
Cr.  179,  153  P.  209. 

-  State  v.  Douglas,  37  P.  172,  53  Kan.  6G9. 

(758) 


Art.  3)  COMPETENCY  AND  PRIVILEGE  §    865 

agent  of  the  other,  or  when  they  are  joint  parties  and  have  a  joint 
interest  in  the  action;  but  in  no  case  shall  either  be  permitted  to 
testify  concerning-  any  communication  made  by  one  to  the  other 
during  the  marriage,  whether  called  while  that  relation  subsisted, 
or  afterwards."  8 

8  Rev.  Laws  1910,  §  SOfiO;  Xix  v.  Gilmer,  50  P.  131,  5  Okl.  740;  Hampton  v. 
State,  123  P.  571,  7  Okl.  Cr.  291.  40  L.  R.  A.  (N.  S.)  43. 

Husband  and  wife  are  incompetent  to  testify  for  and  against  each  other, 
except  in  transactions  in  which  one  acted  as  the  agent  of  the  other,  or  where 
they  have  a  .joint  interest  in  the  action.  St.  Louis  &  S.  F.  R.  Co.  v.  Bloom, 
39  Okl.  78,  134  P.  432;  Herron  v.  M.  Ruraley  Co.,  116  P.  952,  29  Okl.  317; 
Wade  v.  Sunnier,  30  Okl.  784,  120  P.  1011. 

Husband  held  an  .incompetent  witness  to  testify  for  or  against  his  wife  in 
action  in  ejectment  and  to  quiet  title,  where  main  issue  was  whether  convey' 
auce  of  wife's  property  executed  by  herself  and  husband  was  a  deed  or  a  mort- 
gage. Thomas  v.  Halsell.  63  Okl.  203,  164  P.  458. 

Where  two  defendants  are  sued  jointly,  and  a  joint  answer  and  defense  are 
made  by  them,  the  wife  of  one  is  not  competent  to  testify  to  a  matter  sus- 
taining the  joint  defense,  and  which  necessarily  affects  the  right  of  her  hus- 
band equally  with  that  of  his  codefendant.  Arn  v.  Mathews,  18  P.  65,  39  Kan. 
272. 

Where,  in  an  action  to  set  aside  a  will,  the  principal  legatee  died  pending 
the  action,  and  a  revivor  was  had  in  the  name  of  his  widow,  who  was  his  ex- 
ecutor and  sole  heir  at  law,  she  was  not  incompetent  as  a  witness  because 
the  widow  of  one  of  the  original  parties,  where  she  did  not  testify  to  any  com- 
munications between  herself  and  husband  during  their  marriage.  Harper  v. 
Harper,  113  P.  300,  83  Kan.  761. 

In  an  action  to  set  aside  a  fraudulent  conveyance,  the  wife  of  the  grantee 
is  not  competent  to  testify  either  in  behalf  of  her  husband  or  the  grantor,  no 
(evidence  being  admissible  in  behalf  of  the  latter,  he  not  being  a  necessary 
party.  Metzger  v.  Burnett,  48  P.  599,  5  Kan.  App.  374. 

In  replevin  against  a  married  woman,  unless  her  husband  is  a  party  to  the 
action,  or  has  a  joint  interest  therein,  or  is  his  wife's  agent,  he  is  incompe- 
tent as  a  witness  for  plaintiff.  Flohr  v.  Schwartzberg,  59  P.  666,  9  Kan.  App. 
215. 

On  appeal  from  a  judgment  of  a  justice  of  the  peace,  the  wife  of  appellant, 
who  was  made  a  party  in  the  justice  court  and  filed  a  general  denial,  but 
against  whom  no  judgment  was  rendered,  will  not  be  allowed  to  testify  in 
favor  of  her  husband,  on  the  ground  that  she  was  a  party  to  the  suit  in  jus- 
tice court,  and  intends  to  perfect  an  appeal,  since  no  appeal  will  lie  on  her 
part.  Xutt  v.  Gaddis,  59  P.  727,  10  Kan.  App.  358. 

Motion  to  strike  out  testimony  of  plaintiff,  in  action  of  slander,  as  to  com- 
munication of  use  of  alleged  words  to  her,  held  properly  overruled.  Ramsey 
v.  Partridge,  121  P.  343,  86  Kan.  398. 

When  a  wife  testifies  upon  direct  examination,  without  objection,  that  she 
heard  of  the  making  of  threats  to  arrest  and  imprison  her  husband,  without 
stating  from  whom  she  heard  them,  and  that  in  consequence  she  became  so 
alarmed  concerning  him  that  she  executed  a  mortgage  upon  her  homestead, 

(759) 


§  865  WITNESSES  (Ch.  14 

For  a  husband  or  wife  to  be  competent  to  testify  for  or  against 
each  other,  it  is  essential,  not  only  that  they  be  joint  parties,  but 
also  that  they  have  a  joint  interest  in  the  action.9 

against  her  judgment  and  will,  in  order  to  insure  his  safety,  her  evidence,  as 
to  the  bare  fact  of  what  she  heard,  is  not  rendered  incompetent  by  a  disclo- 
sure upon  cross-examination  that  she  heard  it  as  a  communication  from  her 
husband.  State  Bank  v.  Hutchinson,  61  P.  443,  62  Kan.  9. 

Joint  parties  and  interest. — A  wife  held  not  an  incompetent  witness  where 
she  was  a  joint  party  plaintiff  with  her  husband  and  had  a  joint  interest  in 
the  action.  Ray  v.  Navarre,  47  Okl.  438,  147  P.  1019';  Stewart  v.  Riddle,  76 
Okl.  70,  184  P.  443 ;  Young  v.  Blackert,  51  Okl.  285,  151  P.  1057. 

A  wife  who,  jointly  with  her  husband,  signed  certain  warranty  deeds  mate- 
rial to  the  issues,  and  who  joined  with  her  husband  as  plaintiff,  and  against 
whom  defendants  prayed  judgment  for  breach  of  warranty,  was  competent  to 
testify.  West  &  Russell  v.  Rawdon,  130  P.  1160,  33  Okl.  399. 

A  wife  who  is  a  co-plaintiff  with  her  husband,  in  an  action  to  enjoin  the 
sale  under  execution  of  their  homestead,  is  a  competent  witness.  Zimmerman 
v.  Clarke,  58  P.  277,  9  Kan.  App.  889. 

As  the  husband  and  wife  are  jointly  interested  in  an  appeal  by  both  from 
an  award  in  condemnation  proceedings  of  part  of  the  homestead,  owned  by 
the  wife,  but  occupied  by  both  as  a  residence,  the  husband  is  a  competent  wit- 
ness on  the  trial  of  the  appeal.  Chicago,  K.  &  W.  R.  Co.  v.  Anderson,  21  P. 
1059,  42  Kan.  297. 

A  mother  was  not  rendered  incompetent  by  Gen.  St.  1909,  §  5915,  from  tes- 
tifying, in  an  action  by  her  son  against  the  estate  of  his  deceased  father  for 
services,  that  her  husband  in  his  lifetime  had  told  her  that  the  son's  services 
were  worth  $30  per  month,  and  that  he  would  get  it  when  he  died,  etc.,  since 
such  evidence  was  not  for  or  against  the  deceased  husband ;  his  interest  hav- 
ing upon  his  decease  passed  to  others.  In  re  Schaffner's  Estate,  141  P.  251, 
92  Kan.  570. 

After  marriage  terminated. — A  woman  cannot  testify  against  her  former 
husband  concerning  any  communication  made  by  one  to  the  other  while  the 
marriage  relation  existed.  Adkins  v.  Wright,  131  P.  686,  37  Okl.  771. 

A  husband  can  in  no  case  testify  concerning  any  communication  made  by 
his  wife  to  him  during  the  marriage,  whether  called  while  that  relation  sub- 
sisted or  afterwards.  Herron  v.  M.  Rumley  Co.,  116  P.  952,  29  Okl.  317. 

Criminal  cases. — In  the  prosecution  of  a  father  for  willfully  failing  to  prop- 
erly support  his  children,  the  wife  is  a  competent  witness  against  him.  Hunter 
v.  State,  10  Okl.  Cr.  R.  119,  134  P.  1134,  L.  R.  A.  1915A,  564,  Ann.  Gas.  1916A, 
612. 

In  a  prosecution  for  the  sale  of  liquor,  where  the  state's  witness  testified 

»  Guthrie  v.  Mitchell,  38  Okl.  55,  132  P.  138.  In  an  action  by  a  married 
woman  suing  for  rents  and  profits  on  her  land,  she  was  not  entitled  under 
Comp.  Laws  1909,  §  5842,  making  a  husband  competent  to  testify  for  his  wife 
concerning  a  transaction  in  which  he  acted  as  her  agent,  to  have  her  hus- 
band measure  the  land,  and  then  testify  as  to  the  number  of  acres  ascertained 
by  such  measurements,  where  the  opposite  party  was  not  a  party  to  the  meas- 
urement. Id. 
(760) 


Art.  3)  COMPETENCY  AND  PRIVILEGE  §   865 

Husband  and  wife  are  competent  witnesses  for  or  against  each 
other  concerning  transactions  in  which  one  acted  as  the  other's 
agent,10  but  the  fact  of  such  agency  must  be  established  before  the 
testimdny  is  offered.11 

that  the  sale  was  made  by  defendant's  wife  at  his  home,  she  is  a  competent 
witness  in  his  behalf.  Tucker  v.  State,  125  P.  1089,  7  Okl.  Cr.  634,  denying 
rehearing  124  P.  1134,  7  Okl.  Cr.  634. 

The  prosecutrix,  when  a  married  woman,  is  incompetent  to  testify  to  non- 
access  of  the  husband  during  the  period  within  which  the  child  must  have 
been  begotten,  or  to  any  facts  or  circumstances  from  which  such  nonaccess 
may  be  inferred.  Bell  v.  Territory,  56  P.  853,  8  Okl.  75. 

In  a  criminal  prosecution,  where  a  letter  previously  written  and  sent  by 
the  defendant  to  his  wife,  is  not  in  the  custody  or  control  of  either  the  de- 
fendant or  his  wife,  nor  in  the  custody  or  control  of  any  agent  or  representa- 
tive of  either,  but  is  in  the  custody  and  control  of  a  third  person,  who  is  call- 
ed as  a  witness  for  the  prosecution  in  the  case,  such  letter  may  be  used  in  the 
case  as  evidence  against  the  defendant.  Connella  v.  Territory,  86  P.  72,  16 
Okl.  365. 

In  a  prosecution  for  adultery  the  injured  spouse  is  a  competent  witness. 
Kitchens  v.  State,  140  P.  619,  10  Okl.  Cr.  603 ;  Mitchell  v.  Same,  140  P.  622, 
10  Okl.  Cr.  697 ;  Heacock  v.  State,  112  P.  949,  4  Okl.  Cr.  606. 

Under  Cr.  Code  Kan.  §  215  (Gen.  St.  Kan.  1909,  §  6791),  held  not  error  to 
permit  defendant's  wife  to  testify  to  a  conversation  with  him.  State  v.  Mar- 
see,  144  P.  833,  93  Kan.  600. 

ioTreiber  v.  McCormack,  136  P.  268,  90  Kan.  675,  Ann.  Cas.  1915B,  943; 
Stewart  v.  Riddle,  76  Okl.  70,  184  P.  443 ;  Lowman  v.  Elaine  County  Bank, 
139  P.  952,  40  Okl.  519. 

The  husband  is  a  competent  witness  to  testify  on  behalf  of  his  wife  in  trial 
of  a  civil  action,  where  the  evidence  discloses  that  he  acted  as  her  agent  in 
reference  to  matters  to  which  his  evidence  is  directed,  notwithstanding  Rev. 
Laws  1910,  §  5050.  Bagg  v.  Shoenfelt  (Okl.)  176  P.  511. 

The  wife  is  a  competent  witness  in  behalf  of  her  husband  in  regard  to  trans- 
actions in  which  she  acted  as  his  agent.  Bell  v.  Day,  57  P.  1054,  9  Kan.  App. 
Ill ;  Armstrong,  Byrd  &  Co.  v.  Crump,  106  P.  855,  25  Okl.  452. 

Defendant's  wife  was  not  competent  to  testify  about  any  personal  transac- 
tion between  defendant  and  herself  unless  she  was  an  agent  in  the  transac- 
tion, under  Rev.  Laws  1910,  §  5050.  Johnson  v.  Walters,  59  Okl.  233,  158  P. 
914. 

A  husband,  acting  as  the  agent  of  his  wife,  was  a  competent  witness  on  her 
behalf  as  to  all  matters  covered  by  such  agency.  Wiggins  v.  Foster,  55  P.  350, 
8  Kan.  App.  579. 

In  an  action  in  which  the  husband  is  a  party,  a  wife  who  has  had  charge 
of  lier  husband's  money  is  competent  to  testify  as  to  the  fact  that  it  was 
loaned ;  the  loaning  being  within  the  scope  of  her  agency.  Green  v.  McCrack- 
en,  67  P.  857,  64  Kan.  330. 

Where  the  wife  of  one  of  the  parties  is  produced  as  a  witness  on  behalf  of 
her  husband  to  prove  an  admission  by  the  adverse  party  that  money  being 

11  Fulkerson  v.  Kilgore,  64  P.  5,  10  Okl.  655. 

(701) 


§  865  WITNESSES  (Ch.  14 

The  rule  that  an  agency  resting  in  parol  can  generally  be  proved 
by  testimony  of  either  the  principal  or  the  person  claiming  to  act 
as  agent  applies  when  the  purported  agent  is  either  the  husband  or 
wife  of  principal.12 

Although  the  wife  of  a  party  is  not  competent  to  testify  unless 
she  is  the  agent  of  her  husband,  or  has  a  joint  interest  in  the  action, 
a  party  can  offer  his  wife  as  a  witness  and  have  her  examined  as  to 
her  competency,  and  it  is  not  error  to  permit  preliminary  questions 
and  answers  to  determine  whether  or  not  she  acted  as  her  hus- 
band's agent.13  Where  a  husband  merely  authorizes  his  wife  to  act 
as  his  agent  for  a  specific  purpose,  he  may  so  testify.14 

A  wife  may  testify  concerning  a  transaction  in  which  she  acted 
as  her  husband's  agent,  though  her  "husband  was  present  when  the 
transaction  occurred.15 

That  a  husband  under  his  wife's  direction  searched  for  a  witness 

paid  by  the  husband  to  him  was  all  that  was  due,  it  is  not  sufficient  to  render 
her  competent  as  a  witness  that  she  wrote  the  receipt  for  the  money  and  usu- 
ally did  her  husband's  writing  and  sometimes  did  other  business  for  nim, 
but  it  must  appear  that  she  was  engaged  in  the  settlement  of  the  accounts  be- 
tween her  husband  and  the  adverse  party  and  that  she  had  general  special 
authority  from  him  to  do  so.  Gulliford  v.  McQuillen,  89  P.  927,  75  Kan.  454. 

In  an  action  to  recover  for  forcible  eviction,  plaintiff  claiming  to  be  in  law- 
ful possession  of  a  farm  under  a  verbal  lease  from  defendant,  held,  that  there 
was  no  competent  evidence  that  the  wife  was  the  agent  of  her  husband  as  to 
such  lease  so  as  to  render  admissible  in  evidence  against  him  declarations  and 
admissions  made  in  his  absence.  Hayes  v.  Funk,  99  P.  1131,  79  Kan.  416. 

i2Bagg  v.  Shoenfelt  (Okl.)  176  P.  511. 

A  husband  may  testify  for  his  wife  as  to  any  business  transacted  by  him 
for  her  as  her  agent.  Smith  v.  Travel,  94  P.  529,  20  Okl.  512.  A  husband  is 
a  competent  witness  to  testify  that  he  acted  as  agent  of  his  wife.  Id. 

A  husband  or  wife  is  competent  to  show  his  or  her  authority  to  act  as 
agent  of  the  other.  Wichita  &  W.  R.  Co.  v.  Kuhn,  16  P.  75,  38  Kan.  104,  judg- 
ment reversed  on  rehearing  17  P.  322,  38  Kan.  675 ;  Paulsen  v.  Hall,  18  P.  225, 
39  Kan.  365. 

A  wife  may  testify  in  Tier  own  behalf,  in  a  suit  between  herself  and  another, 
to  the  creation  by  her  of  an  agency  in  her  husband,  and  to  its  execution  by 
him.  McAdow  v.  Hassard,  48  P.  846,  58  Kan.  171. 

i»  Wade  v.  Sumner,  30  Okl.  784,  120  P.  1011. 

Evidence  on  the  question  of  the  wife's  competency  to  testify  held  to  show 
that  she  acted  as  her  husband's  agent  in  the  transaction  on  which  her  testi- 
mony was  sought.  Western  Nat.  Life  Ins.  Co.  v.  Williamson-Halsell-Frazirr 
Co.,  131  P.  691,  37  Okl.  213. 

I*  Bell  v.  Day,  57  P.  1054,  9  Kan.  App.  111. 

10  Western  Nat.  Life  Ins.  Co.  v.  Williamsou-Halsell-Frazier  Co.,  131  P. .691, 
37  Okl.  213. 

(762) 


Art.  3)  COMPETENCY  AND   PRIVILEGE  §    865 

did  not  render  him  competent  to  testify  on  his  wife's  behalf  as  her 
agent,  to  a  'conversation  between  himself  and  the  witness  for  the 
purpose  of  impeaching  the  witness.16 

Where  a  husband  accompanies  his  wife  to  hear  a  conversation  be- 
tween her  and  a  third  person,  he  is  not  acting  as  her  agent  in  such 
sense  as  to  make  him  competent  as  a  witness.17 

Where  an  action  is  brought  by  the  wife,  and  the  husband,  who 
is  not  a  party  or  interested  in  the  action,  is  introduced  as  a  wit- 
ness in  her  behalf,  the  examination  of  such  witness  must  be  con- 
fined strictly  to  transactions  in  which  the  husband  acted  as  the 
agent  of  the  wife.18 

W'here,  in  absence  of.  the  husband  from  home,  the  wife  acts  in 
the  protection  of  property  owned  by  him  and  within  the  home 
limits,  she  is  acting  as  his  agent,  and  is  a  competent  witness  in  an 
action  by  or  against  him  as  to  conversations  with  regard  to  such 
property.19 

A  husband  acting  for  his  wife's  interest  in  a  homestead,  and 
whose  acts  were  ratified  with  knowledge,  was  her  agent  and 
competent  to  testify  in  regard  thereto.20 

The  fact  that,  in  an  action  against  a  husband  and  wife  judgment 
is  first  rendered  against  the  husband,  does  not  make  him  any  less 
a  joint  party  with  her,  so  as  to  render  him  an  incompetent  wit- 
ness.21 

Where  a  married  woman  was  defendant  in  foreclosure,  and  h'er 
cross-petition  was  dismissed  and  she  was  dismissed  out  of  the 
case,  the  testimony  of  her  husband  was  competent.22 

ie,Muskogee  Electric  Traction  Co.  v.  Mclntire,  133  P.  213,  37  Okl.  684,  L. 
R.  A.  1916C,  351. 

IT  Fish  v.  Bloodworth,  129  P.  32,  36  Okl.  586. 

is  Council  Grove,  O.  C.  &  O.  Ry.  Co.  v.  Center,  22  P.  574,  42  Kan.  438. 

It  is  not  error  to  permit  the  husband  of  plaintiff  to  testify  on  the  trial  of  * 
an  action  by  her,  where  he  has  acted  as  her  agent  as  to  matters  to  which  her 
evidence  is  directed.    Bland  v.  Peters,  30  Okl.  70S,  120  P.  631. 

is  Calloway  &  Son  v.  Wrench  (Okl.)  175  P.  209. 

Where,  in  the  husband's  absence,  the  wife  acts  in  protection  of  property 
claimed  by  him,  though  without  express  direction,  she  is  a  competent  wim<->>. 
in  an  action  by  or  against  him,  as  to  what  she  does  and  says  in  relation  there- 
with. McDonald  v.  Cobb,  52  Okl.  581,  153  P.  138. 

20  State  Mut.  Ins.  Co.  v.  Green,  62  Okl.  214,  166  P.  105.  L.  R.  A.  1917F,  663. 

21  Atchison  Sav.  Bank  v.  Means,  58  P.  989,  61  Kan.  857. 

22  Van  Valkenburg  v.  Lynde,  66  P.  994,  63  Kan.  887. 

(763) 


§  865  WITNESSES  (Ch.  14 

A  husband  is  a  competent  witness  in  an  action  brought  by  his 
wife  as  an  executrix  of  the  estate  of  a  deceased  person.23 

The  wife  is  incompetent  to  testify,  where  the  husband  is  inter- 
ested in  the  result  of  the  case,  though  the  action  is  in  the  name  of 
a  third  party.24 

The  clause  forbidding  a  husbaad  or  wife  testifying  concerning 
communications  made  by  one  to  the  other  during  marriage  is  not  ' 
affected  by  their  being  joint  parties  and  jointly  interested  in  the 
action,  or  by  one  having  acted  as  the  agent  of  the  other.25 

A  husband  cannot  testify  to  a  communication  made  by  him  to  his 
wife  concerning  property  claimed  by  her.26 

In  an  action  by  a  husband  for  alienating  the  affections  of  his  wife, 
he  is  not  incompetent  to  testify  as  to  transactions  or  communica- 
tions not  had  by  him  with  his  wife.27 

A  conversation  between  husband  and  wife  in  the  presence  or  hear- 
ing of  another  is  not  a  confidential  communication.28 

The  wife  of  one  who  is  interested  in  an  action  only  as  the  next 
friend  of  a  minor  plaintiff  is  a  competent  witness  in  the  case.29 

In  husband's  action  for  personal  injury,  the  wife  was  a  competent 

*, 

23  Van  Fleet  v.  Stout,  24  P.  960,  44  Kan.  523. 

24  Western  Nat.  Life  Ins.  Co.  v.  Williamson-Halsell-Frazier  Co.,  131  P.  691, 
37  Okl.  213. 

25  Marshall  v.  Marshall,  80  P.  629,  71  Kan.  313. 

The  plaintiff  caused  the  deposition  of  one  of  the  defendants  to  be  taken 
prior  to  the  trial,  in  which  the  witness  gave  testimony  concerning  communi- 
cations had  with  her  husband  during  the  marriage,  and  prior  to  his  death. 
Held,  that  the  testimony  falls  within  the  prohibition  of  the  Code  which  for- 
bids husband  or  wife  "to  testify  concerning  any  communication  made  by  one 
to  the  other  during  marriage,  whether  called  while  that  relation  subsisted  or 
afterwards,"  and  its  admission  over  the  objection  of  the  defendants  was  er- 
ror. French  v.  Wade,  11  P.  138,  35  Kan.  391. 

26  Van  Zandt  v.  Schuyler,  43  P.  295,  2  Kan.  App.  118. 

Under  Civ.  Code,  §  323,  providing  that  in  no  case  can  either  the  husband 
or  wife  testify  concerning  any  communication  made  by  one  to  the  other  dur- 
ing the  marriage,  a  husband  cannot  so  show  his  life  interest  in  property  stand- 
ing in  his  wife's  name.  Chicago,  K.  &  N.  Ry.  Co.  v.  Ellis,  34  P.  352,  52  Kan.  48. 

27  Roesner  v.  Darrah,  70  P.  597,  65  Kan.  599. 

Husband  suing  for  damages  for  the  alienation  of  the  affections  of  his  wife 
and  her  seduction  is  a  competent  witness,  except  as  to  his  transactions  or 
communications  with  her.  Potter  v.  Womach,  63  Okl.  107,  162  P.  801. 

28  State  Bank  v.  Hutchinson,  61  P.  443,  62  Kan.  9;   State  v.  Gray,  39  P.  1050, 
55  Kan.  135. 

29  Potter  v.  Stamfli,  44  P.  46,  2  Kan.  App.  788. 

(764) 


Art.  3)  COMPETENCY  AND  PRIVILEGE  §§   865~866 

witness  to  testify  as  to  the  fact  of  her  telephone  conversation  with 
defendant's  wife,  and  to  detail  the  message  received  for  her  hus- 
band.30 

The  mother,  who  was  divorced  from  the  child's  alleged  father,  is 
a  competent  witness  as  to  the  child's  paternity.81 

That  husband  and  wife  were  not  married  at  the  time  the  trans- 
action occurred  does  not  qualify  them.32 

The.  incompetency  of  a  husband  to  testify  must  be  raised  by  objec- 
tion to  competency  as  a  witness,  and  not  merely  by  an  objection  to 
the  competency,  relevancy,  or  materiality  of  the  testimony.38 

The  prohibition  against  husband  and  wife  being  witnesses  against 
each  other  is  for  the  benefit  of  the  husband  and  wife,  and  may  be 
waived.34 

§  866.    Attorney  and  client 

It  is  also  incompetent  for  an  attorney  to  testify  "concerning  any 
communications  made  to  him  by  his  client,  in  that  relation,  or  his 
advice  thereon,  without  the  client's  consent."  85 

so  Brownell  v.  Moorehead  (Okl.)  165  P.  408. 
si  Lyon  v.  Lash,  99  P.  598,  79  Kan.  342. 

32  Sands  v.  David  Bradley  &  Co.,  129  P.  732,  36  Okl.  649,  45  L.  R.  A.  (N.  S.) 
396. 

In  an  action  under  Rev.  Laws  1910,  §  5281,  for  wrongful  death,  by  a  woman 
suing  as  widow  of  decedent,  and  as  next  friend  to  his  children,  the  testimony 
of  her  present  husband  was  incompetent  under  Rev.  Laws  1910,  §  5050,  where 
he  had  not  acted  as  her  agent  and  was  not  a  party.  Smith  v.  Chicago,  R.  I. 
&  P.  Ry.  Co.,  142  P.  398,  42  Okl.  577. 

The  statute  does  not  prevent  one  from  testifying  against  the  other  after 
the  marriage  relation  has  terminated  regarding  independent  facts  which  are 
not  privileged  communications.  Adkins  v.  Wright,  131  P.  686,  37  Okl.  771. 

Where  plaintiff  offers  a  witness  in  his  behalf  and  defendant  objects  on  the 
ground  that  she  is  the  wife  of  the  plaintiff,  it  is  not  error  to  admit  in  evidence 
a  decree  of  divorce  to  show  that  the  relations  theretofore  existing  between 
them  had  been  dissolved,  and  that  she  was  a  competent  witness  for  plaintiff. 
Easterly  v.  Gater,  87  P.  853,  17  Okl.  93,  10  Ann.  Cas.  888. 

33  Muskogee  Electric  Traction  Co.  v.  Mclntire,  133  P.  213,  37  Okl.  684,  L.  R. 
A.  1916C,  793. 

In  an  action  to  cancel  a  mortgage  by  a  husband  and  his  wife,  the  objection 
that  the  testimony  of  the  wife  was  incompetent  was  not  well  taken.  Hartzell 
v.  Hartzell,  141  P.  772,  42  Okl.  390.  An  objection  to  a  wife  as  a  witness  be- 
cause incompetent,  to  be  available  must  be  made  on  the  ground  of  her  in- 
competency. An  objection  on  the  ground  that  the  testimony  is  incompetent 
does  not  raise  the  question  of  the  competency  of  the  witness.  Id. 

s*  Hampton  v.  State,  123  P.  571,  7  Okl.  Cr.  291,  40  L.  R.  A.  (N.  S.)  43. 

35  Rev.  Laws  1910,  §  5050. 

An  attorney  is  incompetent  to  testify  as.  to  confidential  communications  with 

(765) 


§  866  WITNESSES  (Ch.  14 

A  communication  from  a  client  to  his  attorney  may  be  admitted 
in  evidence,  but  the  attorney,  without  his  client's  consent,  is  pre- 
vented from  testifying  concerning  such  communication.30  No  one 
other  than  the  client  or  one  in  privity  with  him  can  raise  the  ques- 
tion of  privilege  between  client  and  attorney ; S7  nor  can  an  attor- 
ney disclose  privileged  matter  as  a  basis  for  an  opinion  that  a  client 
was  of  unsound  mind  at  the  time  of  a  consultation  had  with  him.38 
However,  an  attorney  may  express  an  opinion  regarding  the  sanity 
of  his  client,  from  observations  made  in  common  with  others  in  a 
nonprofessional  capacity,  or  from  facts  which  did  not  come  to  his 
knowledge  because  his  professional  advice  had  been  sought.89 

An  attorney  may  testify  that  a  certain  person  is  his  client,  for 
this  is  not  a  privileged  communication.40 

his  client.  Pearson  v.  Yoder,  39  Okl.  105,  134  P.  421,  48  L.  R.  A.  (N.  S.)  334. 
Ann.  Cas.  1916A,  62. 

Good-faith  communications  between  an  attorney  and  his  client,  relating  to 
the  best  method  of  protecting  the  client's  interests,  are  privileged.  Emerson 
v.  Western  Automobile  Indemnity  Ass'n,  105  Kan.  242,  182  P.  647. 

An  attorney  cannot  testify  concerning  any  communication  made  to  him  by 
a  client  or  his  advice  thereon  without  the  client's  consent.  Brown  v.  State, 
9  Okl.  Cr.  382,  132  P.  359. 

Communications  made  by  complaining  witness  to  the  prosecuting  attorney 
as  to  his  knowledge  of  matters  relating  to  probable  guilt  are  privileged,  and 
cannot  be  given  in  evidence  over  his  objection  in  an  action  against  him  for 
malicious  prosecution.  Michael  v.  Matson,  105  P.  537,  81  Kan.  360,  L.  R.  A. 
1915D,  1. 

In  a  proceeding  by  writ  of  error  coram  nobis  to  obtain  relief  from  a  sen- 
tence of  imprisonment  imposed  seven  years  before  on  a  plea  of  guilty  obtain- 
ed by  duress,  the  deposition  of  plaintiff  in  the  proceeding,  who  was  still  in 
prison,  and  not  present  at  the  trial,  stated  that  one  K.  had  never  acted  as 
his  attorney,  but  on  the  trial  K.  testified  that  he  was  counsel  for  plaintiff 
when  a  certain  conversation  between  them  occurred.  Held,  that  the  action  of 
the  lower  court  in  excluding  this  conversation  as  a  privileged  communication 
would  not  be  disturbed.  State  v.  Calhoun,  32  P.  38,  50  Kan.  523,  34  Am.  St. 
Rep.  141,  18  L.  R.  A.  838. 

This  statute  is  but  declaratory  of  the  common  law,  and  is  for  the  benefit  of 
the  client,  and  not  the  attorney.  Evans  v.  State,  115  P.  809,  5  Okl.  Cr.  643, 
34  L.  R.  A.  (N.  S.)  577.  v 

36  Tays  v.  Carr,  14  P.  456,  37  Kan.  141. 

37  Matthews  v.  McNeill,  157  P.  387,  98  Kan.  5. 

38  Sheehan  v.  Allen,  74  P.  245,  67  Kan.  712. 
3»  Sheehan  v.  Allen,  74  P.  245,  67  Kan.  712. 

40  Arkansas  City  Bank  v.  McDowell,  52  P.  56,  7  Kan.  App.  568. 

Where  a  will  is  attacked  for  alleged  undue  influence,  evidence  of  the  attor- 
ney who  drew  the  will  as  to  who  gave  him  the  data  therefor,  and  whose  in- 
structions he  followed  in  preparing  the  same,  was  not  objectionable  as  a  dis- 

(766) 


Art.  3)  COMPETENCY   AND   PRIVILEGE  §    866 

In  order  for  a  communication  from  a  client  to  his  attorney  to 
be  confidential,  and  to  impose  upon  the  attorney  the  duty  of  not  dis- 
closing the  same,  it  must  be  of  a  confidential  chaVacter  and  so  re- 
garded, at  least  by  the  client,  at  the  time,  and  must  relate  to  a  mat- 
ter which  is  in  its  nature  private  and  properly  the  subject  of  con- 
fidential disclosure.41 

Communications  made  to  an  attorney  who  was  acting  for  both 
parties,  and  made  in  the  presence  of  both  parties,  are  not  privi- 
leged.42 

An  attorney  may  be  compelled  to  produce  papers  belonging  to 
his  client,  where  the  knowledge  of  their  contents  is  accessible  to 
others  or  to  the  public.43  He  may  be  compelled  to  produce  any 
paper  in  his  possession  belonging  to  his  client,  which  the  client  him- 
self could  be  compelled  to  produce.44 

An  attorney  may  testify  in  behalf  of  his  client,  and  the  fact  that 
his  compensation  as  an  attorney  in  the  action  is  contingent  on  the 
result  of  the  litigation  does  not  render  him  incompetent,  but  goes 
to  his  credibility.43 

Where  statements  are  made  to  an  attorney  when  no  employment 
as  an  attorney  is  suggested  or  anticipated,  and  the  relation  of  at- 

closure  of  confidential  communications.  Kerr  v.  Kerr,  116  P.  880,  85  Kan. 
460. 

41  In  re  Elliott,  84  P.  750,  73  Kan.  151. 

42  Sparks  v.  Sparks.  32  P.  892,  51  Kan.  195. 

Testimony  of  an  attorney  who  acted  for  grantor  and  grantee  in  preparing 
a  contract  as  to  a  conveyance  in  fraud  of  the  grantor's  creditors  held  not 
privileged.  Chicago  Lumber  Co.  v.  Cox,  147  P.  67,  94  Kan.  563. 

4s  Pearson  v.  Yoder,  39  Okl.  105,  134  P.  421,  48  L.  R.  A.  (N.  S.)  334,  Ann. 
Oas.  1916A,  62. 

44  Id. 

After  a  party  to  a  cause  has  voluntarily  procured  a  reading  of  his  un- 
filed  pleading  by  a  nonprofessional  stranger,  has  published  its  contents  in  a 
newspaper  interview,  and  spread  it  on  the  record  of  a  court  of  general  juris- 
diction, in  pleading  against  the  attorney  who  assisted  in  preparing  it,  the 
privileged  character  of  the  document  is  waived,  and  the  attorney  is  released 
from  the  confidential  relation  he  bore  before  its  publication,  and  his  produc- 
tion of  it  for  use  in  evidence  against  the  party  is  not  a  breach  of  privilege. 
In  re  Burnette,  85  P.  575,  73  Kan.  609. 

45  Central  Branch  Union  Pac.  R.  Co.  v.  Andrews,  21  P.  276,  41  Kan.  370. 
Code  Civ.  Proc.  Kan.  §  321  (Gen.  St.  Kan.  1909,  §  5914),  does  not  prohibit 

an  attorney  from  testifying  relative  to  the  preparation  and  execution  of  a 
will  drawn  by  him.  including  information  imparted  by  testator,  in  a  proceed- 
ing to  contest  the  will  for  fraud  and  undue  influence.  Black  v.  Funk,  143  P. 
426,  93  Kan.  60. 


§  866  WITNESSES  (Ch.  14 

torney  and  client  does  not  exist,  the  communications  are  not  priv- 
ileged.46 

Professional  communications  between  a  lawyer  and  his  client 
are  not  privileged,  when  such  communications  are  had  for  the  pur- 
pose of  being  guided  or  assisted  in  the  commission  of  a  crime.47 

The  rule  that  privilege  may  not  be  urged  respecting  communica- 
tions relating  to  perpetration  of  fraud  is  limited,  ordinarily,  to  cases 
of  actual  fraud  involving  moral  turpitude.48 

An  attorney  is  employed  in  his  professional  capacity  when  he  is 
voluntarily  listening  to  his  client's  preliminary  statement,  and  it 
is  not  necessary  that  any  retainer  should  have  been  promised, 
charged,  or  demanded,  and  it  makes  no  difference,  though  the  serv- 
ices are  gratuitous.49 

Where  a  client  testifies  as  to  confidential  communications  made 
by  her  to  her  attorney  and  as  to  his  advice  thereon,  this  operates  as 
a  consent  that  the  attorney  may  testify  as  to  what  actually  tran- 
spired between  him  and  his  client.50 

46  State  v.  Herbert,  66  P.  235,  63  Kan.  516 ;    Robinson's  Ex'rs  v.  Blood's 
Heirs,  62  P.  677,  10  Kan.  App.  576. 

A  lawyer,  who  prepared  a  contract  for  decedent,  may  testify  as  to  a  con- 
versation with  the  decedent  when  the  contract  »vas  executed,  to  show  that 
the  deceased  knew  and  understood  the  contents  of  the  contract,  if  the  rela- 
tion of  attorney  and  client  did  not  exist  between  the  witness  and  the  dece- 
dent. Grimshaw  v.  Kent,  73  P.  92,  67  Kan.  463. 

Where  a  person  communicated  to  an  attorney  certain  facts,  which  became 
Important  as  evidence  against  the  person  making  them  in  an  action  subse- 
quently brought  in  which  he  was  a  party,  and  the  attorney,  without  the  con- 
sent of  the  person  making  such  communication,  was  called  by  the  adverse 
party  as  a  witness,  and  the  court  excluded  such  testimony  as  being  privileged, 
it  was  error,  where  the  advice  of  the  attorney  was  gratuitously  given,  and  it 
was  not  known  that  he  was  an  attorney,  and  the  communications  were  not 
made  under  the  seal  of  professional  confidence.  Union  Pac.  R.  Co.  v.  Day, 
75  P.  1021,  68  Kan.  726. 

There  was  no  relation  of  attorney  and  client  between  the  defendants  in  a 
prosecution  for  criminal  libel  and  the  prosecuting  officer,  so  as  to  exclude  evi- 
dence of  such  officer,  as  to  communications  falsely  charging  a  third  person 
with  crime.  State  v.  Wilcox,  132  P.  982,  90  Kan.  80,  9  A.  L.  R.  1091. 

47  Morris  v.  State,  115  P.  1030,  6  Okl.  Cr.  29. 

48  Emerson  v.  Western  Automobile  Indemnity  Ass'n,  105  Kan.  242,  182  P. 
647. 

49  Evans  v.  State,  115  P.  809,  5  Okl.  Or.  643.  34  L.  R.  A.  (N.  S.)  577. 
so  Brown  v.  State,  9  Okl.  Cr.  382,  132  P.  359. 

In  a  partition  suit,  that  defendants  had  taken  and  filed,  but  had  not  used, 
the  deposition  of  a  witness  claimed  to  be  incompetent  under  Code  Civ.  Proc. 
Kan.  §  321  (Gen.  St.  Kan.  1915,  §  7223),  respecting  communications  by  a  cli- 

(768) 


Aft.  3)  COMPETENCY  AND  PRIVILEGE  §§   867~868 

§  867.    Clergyman  or  priest 

It  is  incompetent  for  a  clergyman  or  priest  to  testify  "concerning 
any  confession  made  to  him  in  his  professional  character  in  the 
course  of  discipline  enjoined  by  the  church  to  which  he  belongs, 
without  the  consent  of  the  person  making  the  confession."  81 

§  868.     Physician  and  patient 

It  is  incompetent  for  a  physician  or  surgeon  to  testify  "concern- 
ing any  communication  made  to  him  by  his  patient  with  reference 
to  any  physical  or  supposed  physical  disease,  or  any  knowledge  ob- 
tained by  a  personal  examination  of  any  such  patient:  Provided, 
that  if  a  person  offer  himself  as  a  witness,  that  is  to  be  deemed 
a  consent  to  the  examination;  also,  if  an  attorney,  clergyman  or 
priest,  physician  or  surgeon  on  the  same  subject,  within  the  mean- 
ing of  the  last  three  subdivisions  of  this  section."  °2 

This  provision  of  the  Code  merely  grants  a  privilege  to  render 
physicians  and  surgeons  incompetent  to  testify  to  certain  commu- 
nications.153 

ent  to  his  attorney,  constituted  a  waiver  of  the  privilege.    Watson  v.  Wat- 
son, 104  Kan.  578,  180  P.  242. 

In  an  action  in  conversion,  where  conspiracy  is  charged,  it  is  not  error  to 
permit  an  attorney  to  testify  that  he  had  advised  one  of  the  defendants  that 
an  abstract  of  title  showed  defective  title,  for  the  purpose  of  showing  notice 
of  bad  title ;  no  objection  being  made  that  the  conversation  was  privileged. 
American  Trust  Co.  v.  Chitty,  129  P.  51,  36  Okl.  479. 

51  Rev.  Laws  1910,  §  5050. 

52  Rev.  Laws  1910,  §  5050. 

ss  Armstrong  v.  Topeka  Ry.  Co.,  144  P.  847,  93  Kan.  493. 

In  bastardy  proceedings,  where  the  relatrix  and  the  defendant  agreed  that 
a  physician  should  make  an  examination  for  the  purpose  of  determining  the 
duration  of  pregnancy,  statements  made  by  the  relatrix  to  the  physician  dur- 
ing the  examination  as  to  the  date  of  her  first  intercourse  with  defendant 
were  competent.  Clark  v.  State,  61  P.  814,  8  Kan.  App.  782. 

Statements  made  by  an  injured  employe"  to  a  surgeon  called  to  attend  him 
as  to  the  position  of  the  employe1  immediately  preceding  the  accident  are  not 
privileged.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  v.  Murray,  40  P.  646,  55  Kan. 
336. 

Code  Civ.  Proc.  Kan.  §  323,  as  amended  in  1909  (Code  Civ.  Proc.  Kan.  §  321 
[Gen.  St.  Kan.  1909,  §  5915]),  do  not  excuse  a  physician  from  testifying  as 
to  the  time,  manner,  and  circumstances  of  a  street  car  accident  resulting  in 
injuries  to  a  passenger.  Armstrong  v.  Topeka  Ry.  Co.,  144  P.  847,  93  Kan.  493. 

A  physician  was  employed  to  attend  a  patient,  and  afterwards  the  family 
physician  took  charge  of  the  case.  Within  a  few  hours  the  physician  first 
called  again  visited  the  patient,  when  a  statement  was  made  as  to  the  cause 
of  the  injury.  The  patient  stated  that  he  regarded  the  doctor  as  his  physi- 

HON.PL.&  PBAC.-^9  (769) 


§  868  WITNESSES  (Ch.  14 

Testimony  of  a  physician  as  to  any  communication  made  by  his 
patient  as  to  her  disease,  or  knowledge  obtained  by  him,  may  be  giv- 
en, if  the  patient  testifies  on  the  same  subject.64 

So,  too,  the  heirs  at  law  of  one  who  has  been  treated  by  a  physi- 
cian may  waive  the  privilege  of  making  a  physician  incompetent 
to  testify  to  any  knowledge  obtained  in  his  professional  capacity 
from  his  patient.55 

A  physician  is  not  incompetent  to  testify  as  to  communications 
by  a  patient  or  to  knowledge  obtained  by  a  personal  examination, 
where  third  persons  were  present.50 

cian,  but  the  doctor  stated  that  he  did  not  regard  himself  as  such.  Held, 
that  the  exclusion  of  the  statement  as  privileged  was  not  error.  E.  Patter- 
son &  Son  v.  Cole,  73  P.  54,  67  Kan.  441. 

s*  Roeser  v.  Pease,  131  P.  534,  37  Old.  222 ;  Fulsom-Morris  Coal  &  Mining 
Co.  v.  Mitchell,  132  P.  1103,  37  Okl.  575. 

Where  plaintiff  testified  as  to  the  nature  of  her  injuries,  and  the  time  and 
place  of  treatment,  she  waived  the  privilege  granted  by  Comp.  Laws  1909, 
§  5842,  and  rendered  admissible  the  testimony  of  her  physician  on  these  sub- 
jects. City  of  Tulsa  v.  Wicker,  141  P.  963,  42  Okl.  539. 

Where,  in  personal  injury  action,  plaintiff  testified  that  he  had  never  suf- 
fered similar  injury  prior  to  accident,  and  denied  that  he  had  stated  to  his 
physician  that  he  had  suffered  a  similar  injury,  physician  called  by  plaintiff 
as  witness  may  be  cross-examined  as  to  such  statement.  Chicago,  R.  I.  &  P. 
Ry.  Co.  v.  Hughes,  64  Okl.  74,  166  P.  411. 

An  applicant  for  life  insurance  may  contract  with  the  insurer  waiving  the 
privilege  afforded  him  by  Code  Civ.  Proe.  §  323  (Gen.  St.  1901,  §  4771),  ren- 
dering a  physician  incompetent  to  testify  to  professional  communications 
from  his. patient.  Metropolitan  Life  Ins.  Co.  v.  Brubaker,  96  P.  62,  78  Kan. 
146,  18  L.  R.  A.  (N.  S.)  362,  130  Am.  St.  Rep.  356,  16  Ann.  Cas.  267. 

A  patient's  consent  that  his  physician  shall  testify  to  confidential  commu- 
nications is  implied  from  failure  to  object  when  the  physician  is  called  to 
testify,  provided  the  patient  has  opportunity  to  make  objection.  Id. 

A  physician  may,  with  his  patient's  consent,  testify  to  confidential  commu- 
nications. Id. 

Under  Code  Civ.  Proc.  1901,  §  323,  as  amended  in  1909  (Code  Civ.  Proc.  § 
321  [Gen.  St.  1909,  §  5915]),  the  giving  of  testimony  by  a  patient  without  ob- 
jection is  equivalent  to  consent  that  the  physician  may  testify  to  the  same 
matter.  Id. 

55  Bruington  v.  Wagoi\er,  164  P.  1057,  100  Kan.  10,  439. 

The  heirs  at  law  of  one  who  has  been  treated  by  a  physician  may  waive 
the  provisions  of  the  statute  making  a  physician  incompetent  to  testify  to 
any  knowledge  obtained  in  his  professional  capacity  from  the  patient.  Fish 
v.  Poorman,  116  P.  898,  85  Kan.  237. 

66  In  re  Swartz's  Will,  79  Okl.  191,  192  P.  203. 

(770) 


Art.  3)  COMPETENCY   AND   PRIVILEGE  §§   869-871 

§  869.    Construction  of  statutes 

Statutes  in  derogation  of  the  competency  of  witnesses  will  be 
strictly  construed  in  favor  of  competency.57 

Statutes  excluding  certain  persons  from  testifying  will  be  strictly 
construed,  and  the  exclusion  will  not  be  extended  by  implication  to 
a  class  not  named,  but  a  witness  will  be  deemed  competent  unless 
clearly  rendered  incompetent  by  the  terms  of  the  statute.88 

§  870.     Conviction  of  crime 

The  fact  that  a  witness  has  been  convicted  of  any  felony  except 
perjury  does  not  disqualify  him.59 

§  871.     Self-incrimination 

No  person  shall  be  compelled  to  give  evidence  which  will  tend 
to  incriminate  him,  except  as  i  -  the  Constitution  provided.  A  per- 
son having  knowledge  of  facts  that  tend  to  establish  the  guilt  of 
any  other  person  charged  with  an  offense  shall  not  be  excused  from 
giving  testimony  on  the  ground  that  it  may  tend  to  incriminate 
him,  but  no  person  shall  be  prosecuted  on  account  of  any  transac- 
tion concerning  which  he  may  so  testify.  A  person  under  examina- 
tion before  a  county  judge  in  an  investigation  into  supposed  vio- 
lations of  the  prohibitory  law  is  not  obliged  to  answer  questions, 
where  his  answers  will  tend  to  incriminate  him,  unless  the  inquisi- 
tion is  held  to  inquire  into  a  complaint  made,  supported  by  affidavit 
charging  an  offense  against  the  prohibitory  law.60 

57  Armstrong  v.  Topeka  Ry.  Co.,  144  P.  847,  93  Kan.  493. 

s  s  Savage  v.  Modern  Woodmen  of  America,  113  P.  802,  84  Kan.  63,  33  L. 
R.  A.  (N.  S.)  773. 

It  is  not  against  public  policy  to  require  a  banker  to  disclose  the  amount 
of  a  depositor's  balance,  nor  are  the  transactions  between  him  and  the  depos- 
itor privileged  in  a  legal  sense.  In  re  Davies,  75  P.  1048,  68  Kan.  791. 

59  price  v.  State,  9  Okl.  Cr.  359,  131  P.  1102. 

St.  1893,  §  2578,  providing  that  a  person  sentenced  to  imprisonment  for  life 
is  deemed  civilly  dead,  does  not  affect  his  competency  as  a  witness.  Martin 
v.  Territory,  78  P.  88,  14  Okl.  598.  St.  1893.  §  4209,  provides  that  no  person 
shall  be  disqualified  as  a  witness  because  of  his  conviction  of  a  crime,  but 
such  conviction  may  be  shown  to  affect  his  credibility.  Section  5207  provides 
that  the  rules  of  evidence  in  civil  cases  except  as  otherwise  provided  are  appli- 
cable to  criminal  cases.  Held,  that  one  under  sentence  for  life  is  not  dis- 
qualified from  testifying  in  a  criminal  case.  Id. 

eo  EX  parte  Gudenoge,  100  P.  39,  2  Okl.  Or.  110. 

Const.  Bill  of  Rights,  §§  21,  27. 

In  inquisition  under  Laws  1917,  c.  39S,  to  determine  origin  of  a  fire,  a  wit- 

(771) 


§    871  WITNESSES  (Ch.  14 

The  manifest  purpose  of  the  constitutional  provisions,  both  of 
the  United  States  and  of  the  state,  is  to  prohibit  the  compelling  of 
evidence  of  a  self-criminating  kind  from  a  witness.61 

No  statute,  which  leaves  a  party  or  witness  the  subject  of  pros- 
ecution after  he  answers  the  incriminating  question  put  to  him,  can 
have  the  effect  of  supplanting  the  privilege  conferred  by  the  Con- 
stitution, but  to  be  valid  the  statute  must  afford  absolute  immunity 
against  future  prosecution.62  The  constitutional  provisions  must 
be  construed  as  declaring  that  no  evidence  obtained  from  a  witness 
by  means  of  a  judicial  proceeding  shall  be  given  in  evidence,  or 
in  any  manner  used  against  him  in  any  criminal  proceeding  or  for 
the  enforcement  of  any  penalty  or  forfeiture.63 

The  privilege  against  self-crimination  does  not  protect  the  offi- 
cers of  an  insolvent  institution  in  resisting  production  of  the  books, 

ness  may  claim  his  constitutional  privilege  of  refusing  to  give  incriminating 
answers.  State  v.  Harris,  103  KanN347,  175  P.  153. 

A  justice  of  the  peace,  acting  as  a  coroner  at  an  inquest  for  murder,  can- 
not compel  a  witness  to  answer  incriminating  questions.  Faucett  v.  State, 
10  Okl.  Or.  Ill,  134  P.  839,  L.  R.  A.  1918A,  372. 

Where  a  defendant  offers  the  testimony  of  a  codefendant  jointly  indicted 
with  him,  it  is  not  error  to  refuse  to  compel  the  witness  to  answer  any  ques- 
tion which  the  witness  claims  will  incriminate  him,  and  which  he  declines  to 
answer  on  that  ground.  Anderson  v.  State,  126  P.  840,  8  Okl.  Or.  90,  Ann. 
Gas.  1914O,  314. 

Where,  in  a  prosecution  for  bastardy,  a  witness  declines  to  answer  the 
question  as  to  whether  he  had  intercourse  with  the  relatrix,  on  the  ground 
that  his  answer  might  render  him  liable  to  a  criminal  prosecution,  he  can- 
not be  required  to  answer  if  it  reasonably  appear  that  the  answer  would 
expose  him  to  such  prosecution,  or  if  the  fact  on  which  he  is  interrogated 
would  lead  to  his  conviction  of  a  crime.  Stevens  v.  State,  32  P.  350,  50 
Kan.  712. 

It  is  improper  for  prosecuting  attorney  to  demand  accused  in  the  presence 
of  the  jury  to  produce  any  document  referred  to  containing  evidence  tending 
to  incriminate  him.  Crump  v.  State,  124  P.  632,  7  Okl.  Cr.  R.  535. 

Code, Kan.  §  482,  "in  aid  of  execution,"  authorizing  the  district  judge  to 
require  a  judgment  debtor  to  appear  before  him  to  answer  concerning  his 
property,  which  he  unjustly  refuses  to  apply  towards  the  satisfaction  of  a 
judgment  rendered  against  him,  and  to  order  any  money  in  his  actual  pos- 
session and  under  his  control,  not  exempt  by  law,  to  be  applied  to  the  satis- 
faction of  the  judgment  under  which  the  proceedings  are  had,  and  to  enforce 
said  orders  by  proceedings  for  contempt  in  case  of  refusal  or  disobedience, 
does  not  violate  Bill  of  Rights,  §  10,  providing  that  no  person  shall  be  a  wit- 
ness against  himself.  In  re  Burrows,  7  P.  148,  33  Kan.  675. 

61  Ex  parte  Gudenoge,  100  P.  39,  2  Okl.  Cr.  110. 

62  Id. 

es  Id. 

(772) 


Art.  3)  COMPETENCY  AND   PRIVILEGE  §§   871-872 

records,  and  papers,  because  such  documents  may  tend  to  incrim- 
inate them.64 

A  state  statute  providing  that  no  person  giving  evidence  shall  be 
prosecuted  for  any  violation  of  the  act  about  which  he  may  tes- 
tify, a  witness  cannot  refuse  to  testify  on  the  claim  that  the  im- 
munity afforded  does  not  afford  protection  against  the  possibility 
of  his  evidence  being  used  against  him  in  a  prosecution  for  vio- 
lations of  a  federal  statute.65  This  is  because  the  privilege  cannot 
be  claimed  by  a  witness  when  by  the  terms  of  an  immunity  stat- 
ute the  immunity  afforded  is  coextensive  with  the  constitutional 
privilege  of  silence.66 

§  872.    Waiver 

Where  a  defendant  exercises  his  privilege  to  testify  in  his  own 
feehalf,  he  waives  his  constitutional  privilege  and  is  -subject  to  the 
same  rules  of  cross-examination  as  other  witnesses.67 

The  election  to  testify  having  once  been  made,  the  privilege  of 
not  testifying  is  waived  at  every  subsequent  stage.08  However, 

e*  Burnett  v.  State,  129  P.  1110,  8  Okl.  Cr.  639,  47  L.  R.  A.  (N.  S.)  1175. 

65  State  v.  Jack,  76  P.  911,  69  Kan.  387,  1  L.  R.  A.  (N.  S.)  167,  2  Ann.  Gas. 
171,  judgment  affirmed  Jack  v.  State  of  Kansas,  26  S.  Ct.  73,  199  U.  S.  372, 
50  L.  Ed.  234,  4  Ann.  Gas.  689 ;   In  re  Bell,  76  P.  1129,  69  Kan.  855. 

66  Id. 

Laws  1897,  p.  485,  c.  265,  §  10,  providing  for  the  examination  of  witnesses  as 
to  their  knowledge  of  violations  of  the  anti-trust  law,  and  declaring  that  any 
person  subpoenaed  and  examined  shall  not  be  liable  to  criminal  prosecution 
for  any  violation  of  the  act  about  which  he  may  testify,  affords  to  the  wit- 
ness an  immunity  coextensive  with  the  constitutional  privilege  that  no  per- 
son shall  be  a  witness  against  himself,  so  that  he  cannot  claim  the  privilege 
of  that  provision.  Id. 

67  Smith  v.  State,  14  Okl.  Cr.  348,  171  P.  341. 

Where  a  party  jointly  charged  with  defendant,  but  not  himself  on  trial, 
voluntarily  elects  to  become  a  witness,  he  cannot  claim  on  cross-examination 
any  exemptions  from  answering  incriminating  questions  growing  out  of  the 
transaction  under  consideration.  Bryan  v.  State,  11  Okl.  Cr.  180,  144  P.  392. 

The  defendant  as  a  witness  is  subject  to  the  ordinary  rules  of  evidence. 
McNeill  v.  State  (Okl.  Cr.  App.)  192  P.  256. 

The  privilege  does  not  bar  such  evidence,  but  merely  gives  a  right  which 
may  be  waived  if  not  asserted  in  ample  time.  Scribner  v.  State,  9  Okl.  Cr. 
465,  132  P.  933,  Ann.  Cas.  1915B,  381. 

es  State  v.  Simmons,  98  P.  277,  78  Kan.  852. 

Where  a  prisoner  on  trial  for  a  crime  voluntarily  takes  the  stand,  he 
waives  all  privileges  to  which  he  is  entitled  by  remaining  silent,  and  may  be 
asked  if  he  has  not  made  certain  statements  inconsistent  with  his  testimony 
in  the  cause,  and  if  he  admits  doing  so,  he  may  show  the  conditions  under 

(773) 


§  873  WITNESSES  (Ch.  14 

this  privilege  of  a  witness  is  personal  to  the  witness,  and  not  avail- 
able to  accused  as  a  basis  of  objection.69 

§  873.     Transactions  with  decedent 

"No  party  to  a  civil  action  shall  be  allowed  to  testify  in  his  own 
behalf,  in  respect  to  any  transaction  or  communication  had  person- 
ally by  such  party  with  a  deceased  person,  when  the  adverse  party 
is  the  executor,  administrator,  heir  at  law,  next  of  kin,  surviving 
partner  or  assignee  of  such  deceased  person,  where  such  party  has 
acquired  title  to  the  cause  of  action  immediately  from  such  deceased 
person ;  nor  shall  the  assignor  of  a  thing  in  action  be  allowed  to 
testify  in  behalf  of  such  party  concerning  any  transaction  or  com- 
munication had  personally  by  such  assignor  with  a  deceased  per- 
son in  any  such  case;  nor  shall  such  party  or  assignor  be  com- 
petent to  testify  to  any  transaction  had  personally  by  such  party  of 
assignor  with  a  deceased  partner  or  joint  contractor  in  the  ab- 
sence of  his  surviving  partner  or  joint  contractor,  when  such  sur- 
viving partner  or  joint  contractor  is  an  adverse  party.  If  the  testi- 
mony of  a  party  to  the  action  or  proceeding  has  been  taken,  and 
he  afterwards  die,  and  the  testimony  so  taken  shall  be  used  after 
his  death,  in  behalf  of  executors,  administrators,  heirs  at  law,  next 
of  kin,  assignee,  surviving  partner  or  joint  contractor,  the  other 
party,  or  the  assignor,  shall  be  competent  to  testify  as  to  any  and 
all  matters  to  which  the  testimony  so  taken  relates."  70 

This  statute  operates  to  disqualify  such  a  witness  rather  than  to 
restrict  his  testimony  as  evidence.71  The  word  "transaction,"  with- 
in the  meaning  of  this  statute,  means  a  matter  participated  in  by 
the  witness  and  the  decedent.72 

which  they  .were  made,  and  if  he  denies  such  statements,  the  prosecution  on 
rebuttal  may  prove  them,  though  they  would  not  have  been  admissible  had  ho 
remained  silent,  because  not  voluntary.  Harrold  v.  Territory,  89  P.  202,  18 
Okl.  395,  10  L.  R.  A.  (N.  S.)  604,  11  Ann.  Cas.  818,  judgment  reversed  169  F. 
47,  94  C.  O.  A.  415,  17  Ann.  Cas.  868. 

Under  Rev.  Laws  1910,  §§  5046,  5881,  5882,  where  a  codefendant  avails  him- 
self of  the  privilege  given  by  section  5881,  to  become  a  witness,  he  is  a  com- 
petent witness  for  all  purposes,  either  for  or  against  himself,  or  for  or 
against  his  codefendant.  Buxton  v.  State.  11  Okl.  Or.  85,  143  P.  58. 

ea  Castleberry  v.  State,  139  P.  132,  10  Okl.  Cr.  504. 

TO  Rev.  Laws  1910,  §  5049. 

71  Hunger  v.  Myers,  153  P.  497,  96  Kan.  743. 

72  Words  and  Phrases,  vol.  6,  pp.  5365,  5366 ;    vol.  8,  p.  7061. 

This  statute  should  be  strictly  construed.    Sarbach  v.  Sarbach,  122  P.  1052, 

(774) 


Art.  3)  COMPETENCY  AND   PRIVILEGE  §    873 

This  statute  does  not  prohibit  a  party  to  such  action  from  testi- 
fying as  to  any  matter  relevant  to  the  issues  therein,  except  as  to 
transactions  or  communications  had  personally  with  the  deceased.73 

86  Kan.  894.  It  applies  to  the  testimony  of  a  widow  in  a  suit  against  the 
administrator  of  her  husband's  estate.  .Vance  v.  Whitten,  51  Okl.  1,  151  P. 
567. 

In  an  action  on  a  rejected  claim  against  an  estate,  plaintiff's  testimony  as 
to  the  transactions  involved  in  such  claim  had  personally  with  the  deceased 
was  properly  excluded.  .Richardson  v.  Strother,  55  Okl.  348,  155  P.  528. 

No  party  may  testify  in  his  own  behalf  as  to  transaction  with  decedent 
when  adverse  party  is  executor,  personal  representative,  heir,  next  of  kin, 
surviving  partner,  or  assignee  of  decedent,  where  party  has  acquired  title  to 
cause  of  action  from  decedent.  Lindsey  v.  Goodman,  57  Okl.  408,  157  P.  344. 

No  party  may  testify  in  his  own  behalf  as  to  any  transaction  had  with  a 
deceased  person  when  the  adverse  party  is  the  representative  of  the  deceas- 
ed person.  Wadleigh  v.  Parker,  124  P.  957,  34  Okl.  213. 

No  party  may  testify  in  his  own  behalf  as  to  any  transaction  with  a  de- 
ceased person  when  the  adverse  party  is  the  executor,  administrator,  heir  at 
law,  next  of  kin,  surviving  partner,  or  assignee  of  the  deceased  person,  where 
they  have  acquired  title  to  the  cause  of  action  from  such  deceased  person. 
MacDonald  v.  McLaughlin,  123  P.  158,  32  Okl.  584. 

In  an  action  by  a  grantor  to  set  aside  a  deed  against  a  person  who  had 
acquired  title  immediately  from  the  deceased  grantee  of  such  grantor,  such 
grantor  could  not  testify  in  his  own  behalf  to  any  transactions  or  commu- 
nications with  the  decedent,  whether  such  transactions  or  communications 
were  oral  or  in  writing.  Conklin  v.  Yates,  83  P.  910,  16  Okl.  266. 

In  a  suit  on  a  note  by  an  administrator,  where  defendant  pleaded  usury, 
and  a  statement  partly  in  the  handwriting  of  the  decedent  was  offered  in 
evidence,  testimony  of  defendant  that  the  items  shown  on  the  statement  rep- 
resented the  usurious  transaction  and  that  he  paid  a  usurious  rate  of  inter- 
est related  to  a  transaction  with  the  deceased  person  and  was  inadmissible. 
Wadleigh  v.  Parker,  124  P.  957,  34  Okl.  213. 

A  Creek  freedman  allottee  is  not  competent  to  prove  conversation  with  her 
grantee,  since  deceased,  to  show  that  her  deed  was  in  ratification  of  former 
void  deeds  given  during  minority.  Bell  v.  Mills,  60  Okl.  72,  158  P.  1173. 

Evidence  as  to  the  rendition  of  services  for  a  decedent  of  such  a  character 
as  must  have  been  rendered  in  the  presence  of  decedent  and  with  his  knowl- 
edge and  consent,  or  at  his  request,  is  objectionable.  Clifton  v.  Meuser,  100 
P.  645,  79  Kan.  655.  A  claimant  for  services  in  nursing,  caring  for,  and 
boarding  decedent  is  incompetent  to  prove  the  fact  of  their  performance,  if, 
in  describing  what  he  did,  he  necessarily  attributes  to  decedent  some  act  or 
attitude  with  respect  thereto.  Id. 

Where,  before  trial  of  an  action  of  ejectment  by  a  landlord  against  a  ten- 
ant, who,  during  the  tenancy,  purchased  an  outstanding  title,  defendant  died, 
plaintiff  could  not  testify  as  to  the  making  of  the  lease.  Cunningham  v. 
Phillips,  44  P.  221,  4  Okl.  169. 

It  is  error  to  permit  a  witness'  to  testify  as  to  a  conversation  with  deceas- 

73  Park  v.  Ensign,  63  P.  280,  10  Kan.  App.  173. 

C775) 


§  873  WITNESSES  (Ch.  14 

Advantage  can  only  be  taken  by  a  specific  objection  at  the  proper 
time,74  and  the  incompetency  of  a  witness  to  testify  in  his  own 

ed,  where  witness  acquired  title  or  cause  of  action  immediately  from  such 
deceased.  American  Trust  Co.  v.  Chitty,  129  P.  51,  36  Okl.  479. 

A  party  to  civil  action  against  administrator  is  incompetent  to  testify,  in 
his  own  behalf,  to  facts  which  will  raise  implied  contract  between  party  and 
decedent.  Fuss  v.  Cocannouer  (Okl.)  172  P.  1077;  Wallace  v.  Wallace,  165 
P.  838,  101  Kan.  32. 

In  an  action  by  an  alleged  heir  against  his  mother,  claiming  to  be  widow 
of  testator,  and  persons  claiming  under  testator's  will,  to  set  aside  the  will, 
and  for  partition,  where  the  widow  answered,  asking  the  same  relief  de- 
manded by  plaintiff,  and  the  validity  of  the  marriage  between  testator  and 
the  widow  was  in  issue,  and  the  latter  was  permitted  to  testify  to  facts  re- 
lied on  in  proof  of  the  marriage,  the  widow  did  not,  by  disclaiming  at  the 
close  of  the  evidence  all  interest  in  the  property  in  her  own  behalf,  render 
her  testimony  competent  in  behalf  of  plaintiff.  Shorten  v.  Judd,  42  P.  337, 
56  Kan.  43,  54  Am.  St.  Rep.  587. 

Kansas  cases. — The  statute  does  not  exclude  testimony  of  a  witness  in 
such  cases  whenever  a  decision  for  party  calling  him  would  inure  to  his  ben- 
efit. Collins  v.  Hayden,  104  Kan.  351,  179  P.  308. 

In  suit  against  the  executors  for  services  performed  for  decedent,  plaintiff 
cannot  testify  as  to  her  services  in  nursing  and  caring  for  him  ana  other- 
personal  transactions  with  him.  Heery  v.  Reed,  102  P.  846,  80  Kan.  380. 

Where  plaintiff  in  an  action  testifies  in  her  own  behalf  to  a  certain  fact 
relevant  to  the  issues  pending,  and  on  cross-examination  admits  that  her  only 
means  of  knowledge  are  the  statements  of  the  deceased,  whose  estate  was 
being  sued,  such  evidence  is  incompetent.  Moyer  v.  Knapp,  59  p.  674,  9  Kan. 
App.  226. 

Where  the  original  payee  of  a  note  brings  an  action  thereon  against  the 
administratrix  of  the  maker,  he  is  incompetent  to  testify  that  he  saw  the 
maker  sign  it,  when  the  execution  of  the  same  was  a  part  of  a  trade  between 
the  maker  and  himself;  but  when  the  execution  of  the  note  is  established 
fully  by  other  and  competent  evidence,  the  error  in  permitting  plaintiff  to 
testify  is  not  reversible.  Bryant  v.  Stainbrook,  19  P.  917,  40  Kan.  356. 

A  father  gave  each  of  two  sons  a  tract  of  land,  on  one  of !  which  tracts  was 
a  mortgage,  and  to  equalize  the  gifts  it  was  claimed  it  was  agreed  each  son 
should  pay  one-half  the  mortgage.  Before  the  debt  was  paid,  the  son  whose 
land  was  free  from  the  mortgage  died,  and  the  other  son  sued  the  decedent's 
administrator  to  recover  half  the  mortgage  debt.  Held,  that  the  plaintiff 
was  incompetent  to  testify  to  an  agreement  made  personally  between  himself 
and  his  deceased  brother  and  their  father,  by  which  the  deceased  brother 
undertook  to  pay  one-half  of  the  mortgage  debt  on  the  land  conveyed  to  the 
plaintiff,  and  also  as  to  transactions  had  personally  with  such  deceased  broth- 
er. Miller  v.  McDowell,  64  P.  980,  63  Kan.  75: 

In  an  action  against  an  administrator  on  a  note  executed  by  his  decedent, 

?4  Where  plaintiff  took  defendant's  deposition  and  required  him  to  testify 
as  to  transactions  with  persons  since  deceased,  he  waived  his  right  to  object 
at  the  subsequent  trial  that  defendant  was  incompetent  to  testify  as  to  such 
transaction,  though  the  deposition  was  never  filed.  Cox  v.  Gettys,  53  Okl. 
58,  156  P.  892. 


Art.  3)  COMPETENCY   AND   PRIVILEGE  §    873 

behalf  as  to  a  transaction  with  a  deceased  person  must  be  raised 
by  objection  to  the  competency  of  the  witness,  and  not  merely  by 
objection  to  the  competency  of  the  evidence  offered.75 

plaintiff's  testimony  that,  on  his  own  knowledge,  decedent  had  made  pay- 
ments preventing  the  bar  of  limitations,  was  ,not  inadmissible,  where  it  did 
not  appear  affirmatively  that  the  witness"  knowledge  had  come  to  him 
through  any  transaction  or  communication  had  by  him  personally  with  the 
decedent.  Crebbin  v.  Jarvis,  67  P.  531,  64  Kan.  885. 

A  widow's  testimony  that  she  signed  a  deed  under  threats  of  her  husband, 
and  that  from  what  had  happened  she  feared  there  would  be  more  trouble, 
held  not  incompetent.  Watts  v.  Myers,  145  P.  827,  93  Kan.  824. 

In  a  suit  by  a  husband  to  quiet  title  to  property  of  his  deceased  wife 
against  her  children,  both  parties  claiming  to  inherit  from  her,  he  is  prohibit- 
ed from  testifying  to  transactions  and  communications  had  personally  with 
her.  Dennis  v.  Perkins,  129  P.  165,  88  Kan.  428,  43  L.  R.  A.  (N.  S.)  1219. 

The  surviving  husband  was  incompetent  to  testify  to  a  conversation  with 
his  wife,  since  deceased,  by  which  he  claimed  that  the  postnuptial  contract 
between  them,  that  he  should  take  nothing  of  her  estate,  had  been  abrogated. 
Eberhart  v.  Rath,  131  P.  604,  89  Kan.  329,  Ann.  Gas.  1915A,  268. 

The  statute  does  not  apply  where  the  adverse  party  claims  as  beneficiary 
of  a  mutual  benefit  certificate  to  such  decedent,  since  the  beneficiary  in  the 
certificate  is  not  the  assignee  of  the  member  to  whom  it  was  issued,  and  the 
fact  that  the  beneficiary  is  in  fact  his  heir  or  next  of  kin  is  not  material 
where  his  claim  is  not  founded  on  that  relationship.  Savage  v.  Modern 
Woodmen  of  America,  113  P.  802,  84  Kan.  63,  33  L.  R.  A.  (N.  S.)  773. 

In  an  action  by  the  assignee  of  an  administrator  to  enforce  a  chattel  mort- 
gage against  one  who  had  the  mortgaged  property  sold  under  execution  and 
had  retained  the  proceeds,  in  which  the  mortgagors  were  made  parties  in  or- 
der to  reform  the  mortgage,  one  of  the  mortgagors  was  not  an  incompetent 
witness.  John  T.  Stewart's  Estate,  Inc.,  v.  Falkenberg,  109  P.  170,  82  Kan. 
576. 

Plaintiff's  testimony  that  deceased  had  made  payments  to  him  on  the  note 
in  suit  and  that  plaintiff  had  indorsed  payments  on  the  note  held  inadmissi- 
ble. Broclf  v.  Corbin,  146  P.  1150,  94  Kan.  542. 

Where  defendant,  in  an  action  in  ejectment,  claims  title  through  an  exec- 
utor's sale  of  a  deceased's  real  estate,  he  is  not  the  assignee  of  such  decedent, 
so  that  plaintiffs,  though  they  claim  title  immediately  from  such  decedent, 
are  not  incompetent  under  such  section  to  testify  as  to  transactions  with 
decedent  concerning  matters  in  controversy.  Powers  v.  Scharling,  81  P.  479, 
71  Kan.  716. 

When  a  receiver,  in  obedience  to  an  order  of  court,  turns  over  the  residu- 
es Williams  v.  Joins,  126  P.  1013,  34  Okl.  733. 

The  statute  makes  the  witness  incompetent,  not  the  evidence;  and  hence 
an  objection  that  evidence  is  incompetent,  within  such  statute,  will  not  reach 
the  incompetency  of  the  witness.  Crebbin  v.  Jarvis,  67  P.  531,  64  Kan.  885. 

Where  plaintiffs  were  seeking  to  keep  out  incompetent  testimony,  and  not 
to  use  disqualified  witnesses,  rule  that  incompetency  of  witness  is  waived  by 
cross-examining  him  in  respect  to  transactions  with  decedent  as  to  new  mat- 
ter does  not  apply.  Randall  v.  Randall,  101  Kan.  341,  166  P.  516. 

(777) 


§  873  WITNESSES  (Ch.  14 

Testimony  of  a  party  in  an  action  against  an  administrator  or 
executor  where  it  contains  no  communication  or  transaction  with 
decedent  is  not  incompetent.76 

ary  assets  of  the  receivership  to  a  trustee  for  the  interested  parties,  such' 
trustee  does  not  become  an  assignee,  within  the  meaning  of  Code  Civ.  Proc. 
§  333,  so  as  to  disqualify  a  witness  from  testifying  in  his  own  behalf,  and 
against  the  trustee,  after  the  death  of  the  receiver,  to  transactions  had  per- 
sonally with  him  during  his  lifetime,  concerning  the  transferred  assets.  Pul- 
sifer  v.  Arbuthnot,  53  P.  70,  59  Kan.  380. 

All  the  parties  claiming  title  to  certain  real  estate  directly  from  an  an- 
cestor, as  heirs,  evidence  of  the  defendants  as  to  communications  had  per- 
sonally with  him  was  inadmissible.  Renz  v.  Drury,  45  P.  71,  57  Kan.  84. 

Plaintiff,  seeking  to  redeem  land  from  a  tax  deed,  had  received  a  deed  for 
the  land  when  a  child,  and  testified  that  his  grantor,  for  him,  accepted  an  of- 
fer of  a  subsequent  grantee  in  the  tax  deed  to  pay  the  taxes  for  the  use  of 
the  land.  Defendant  held  by  quitclaim  from  the  grantee  in  the  tax  deed. 
Held  that,  as  neither  party  was  executor,  administrator,  heir  at  law,  or  next 
of  kin  of  the  deceased  grantor,  the  evidence  was  competent.  Kington  v. 
Ewart,  116  P.  495,  85  Kan.  292. 

A  party  to  an  action  may  testify  in  respect  to  transactions  or  communica- 
tions had  by  him  with  a  deceased  person,  where  the  adverse  party  is  not  the 
executor,  administrator,  heir  at  law,  next  of  kin,  surviving  partner,  or  as- 

76  Harper  v.  Harper,  113  P.  300,  83  Kan.  761. 

A  daughter  prosecuting  a  claim  against  the  estate  of  a  mother  can  testify 
to  conversations  between  her  mother  and  a  third  person  in  the  presence  and 
hearing  of  the  witness.  Griffith  v.  Robertson,  85  P.  748,  73  Kan.  666. 

Admission  of  defendant's  testimony  in  an  action  of  conversion  that  she 
had  in  her  possession  for  a  certain  period  of  time  the  bank  books  of  deceased, 
held  not  violative  of  statute  restricting  the  admissibility  of  evidence  of  trans- 
actions with  a  person  since  deceased.  Manning  v.  Maytubby,  141  P.  781,  42 
Okl.  414. 

Defendant's  testimony  as  to  a  conversation  between  a  deceased  person  and 
a  stranger,  heard  by  defendant,  but  in  which  he  did  not  participate,  was  ad- 
missible, as  it  did  not  come  within  statutory  prohibition  of  evidence  as  to 
transactions  with  decedents.  State  Bank  of  Downs  v.  Abbott,  104  Kan.  344, 
179  P.  326. 

The  fact  that  the  declarations  made  by  an  engineer  after  his  injury,  as  to 
the  cause  of  the  accident  resulting  in  his  death,  were  made  to  the  superin- 
tendent of  the  defendant  company,  does  not  render  him  incompetent  to  prove 
them  in  behalf  of  the  company.  Walker  v.  Brantner,  52  P.  80,  59  Kan.  117, 
68  Am.  St.  Rep.  344. 

A  party  to  the  record  is  not  necessarily  incompetent  to  testify  to  transac- 
tions as  between  deceased  and  his  co-defendant,  where  he  took  no  part  there- 
in. Eddy  v.  O'Brien,  57  P.  244,  9  Kan.  App.  882. 

When  it  is  alleged  that  a  deed  was  procured  by  the  undue  influence  of  a 
son  upon  his  mother,  since  deceased,  he  may  state  whether  at  any  time  he 
requested  her  to  make  such  deed,  where  the  manifest  object  of  the  question 
is  to  show  that  he  did  not.  Cobleutz  v.  Putifer,  125  P.  30,  87  Kan.  719,  42  L. 
R.  A.  (N.  S.)  298. 

(778) 


Art.  3)  COMPETENCY  AND   PRIVILEGE  §    873 

A  denial  by  a  witness  that  he  delivered  to  the  deceased  in  her 
lifetime  a  certain  deed  was  not  evidence  of  the  transaction  with 
the  decedent,  but  a  mere  denial  that  a  transaction  was  had." 

gtgnee  of  such  deceased  person,  and  where  the  title  to  tho  cause  of  action 
was  not  acquired  immediately  from  him.  Reville  v.  Dubach,  57  P.  522,  60 
Kan.  572. 

In  action  against  heir  for  specific  performance  of  deceased's  oral  contract 
to  devise  property,  plaintiff's  testimony  that  she  had  had  such  an  agreement 
with  deceased,  and  as  to  unpaid  services  rendered  to  deceased,  was  incompe- 
tent. James  v.  Lane,  103  Kan.  540,  175  P.  387. 

Where  the  party  on  one  side  of  a  controversy  is  the  executor,  administra- 
tor, heir  at  law,  or  next  of  kin  of  the  decedent,  and  has  acquired  title  direct- 
ly through  said  deceased  person,  the  adverse  party  is  incompetent  to  testify 
to  any  transaction  or  communication  with  the  decedent.  Roach  v.  Roach,  77 
P.  108,  69  Kan.  522. 

Under  Laws  1911,  c.  229,  in  action  by  assignee  and  quitclaim  grantee  of 
purchaser  of  real  property  against  administratrix  and  heirs  of  vendor,  orig- 
inal purchaser  is  incompetent  to  testify  as  to  any  transaction  or  communica- 
tion had  personally  with  decedent.  Gilmore  v.  Hoskinson,  157  P.  4*6,  98 
Kan.  86. 

That  testimony  inadmissible  concerning  communications  with  persons 
since  deceased  was  offered  on  the  issue  of  decedent's  mental  capacity  held 
not  to  render  it  competent.  Brown  v.  Brown,  152  P.  646,  96  Kan.  510.  • 

In  an  action  upon  contract  to  devise  property,  in  which  defendant  testified 
that  he  had  never  heard  of  such  contract  before  the  action,  plaintiff  in  iv- 
buttal  might  testify  to  conversations  with  defendant  in  which  conversation 
with  deceased  was  detailed.  Harris  v.  Morrison,  163  P.  1062,  100  Kan.  157. 

A  witness,  incompetent  may  testify  as  to  his  conversation  with  another 
witness  who  in  behalf  of  personal  representative  of  decedent  has  testified  to 
the  conversation,  although  the  incompetent  witness  therein  detailed  his  per- 
sonal transaction  with  decedent.  Wallace  v.  Wallace,  165  P.  838,  101  Kan.  32. 
*The  words  "adverse  party"  are  not  limited  to  the  adverse  positions  of 
plaintiff  and  defendant,  but  affect  any  party,  whether  plaintiff  or  defendant, 
whose  interests  are  actually  adverse  to  those  of  another  party  to  the  action, 
who  appears  in  the  capacity  of  executor,  administrator,  heir  at  law.  next  of 
kin,  surviving  partner,  or  assignee,  where  the  latter  has  acquired  title  to 
the  cause  of  action  immediately  from  a  deceased  person.  American  Inv.  Co. 
v.  Coulter,  61  P.  820,  8  Kan.  App.  841. 

Where  Code  Civ.;Proc.  §  320,  forbids  parol  evidence  of  transactions  with 
deceased  persons,  proof  thereof  need  not  fail,  but  may  be  established  by  cir- 
cumstantial or  other  competent  evidence.  Davis  v.  Sim,  163  P.  622,  100 
Kan.  66. 

Testimony  that  a  decedent  approved  of  parol  gift  of  land  to  defendants 
held  incompetent.  Cook  v.  Cook,  161  P.  625,  99  Kan.  351. 

In  an  action  by  heirs  against  the  devisee  and  executrix  to  contest  a  will, 
the  heirs  are  not  competent  witnesses  to  testify  in  their  own  behalf  concern- 
ing communications  had  personally  with  the  deceased  testator.  Wehe  v. 
Mood,  75  P.  476,  68  Kan.  373. 

A  person  who  is  jointly  liable  upon  the  obligation  sued  on  by  an  executor, 

77  Fish  v.  Poorman,  116  P.  898,  85  Kan.  237. 

(779) 


g  873  WITNESSES  (Ch.  14 

In  a  will  contest  for  alleged  undue  influence,  it  was  proper  for 
those  charged  with  having  exercised  such  influence  to  testify  that 
they  had  no  transactions  with  testatrix  relating  to  the  will.78 

In  an  action  by  an  administrator,  defendants,  if  otherwise  qual- 
ified, may  testify  as  to  the  mental  capacity  of  the  deceased  at  the 
time  the  contract  is  claimed  to  have  been  made.79 

In  a  suit  attacking  a  will,  testimony  of  a  devisee  that  he  had  no 
communication  with  testatrix  is  not  rendered  inadmissible  by  a 
statute  which  forbids  testimony  by  a  devisee  in  his  own  behalf  in 
regard  to  a  communication  had  with  testatrix.80 

The  incompetency  of  a  witness  to  testify  as  to  transactions  or 
communications  had  with  a  decedent  may  be  waived  in  certain  cases 
by  the  acts  of  the  opposite  party.81 

The  incompetency  of  a  witness  to  testify  to  transactions  with  a 
person  since  deceased  is  waived,  where  the  objecting  party  shows 
on  cross-examination  that  the  transaction  occurred.82 

Facts  which  constitute  fraud  on  the  part  of  a  decedent  neces- 
sarily include  personal  transactions  with  such  decedent.83 

Witnesses  who  are  not  parties  to  the  suit  or  controversy  are  com- 

and  has  a  separate  suit  pending  to  determine  the  extent  thereof,  cannot  tes- 
tify in  relation  to  conversations  had  by  him  with  the  deceased  in  relation  to 
the  matter  in  controversy.  Park  v.  Ensign,  63  P.  280,  10  Kan.  App.  173. 

In  action  between  children  of  decedent  for  partition  depending  on  her  de- 
livery of  certain  deeds,  testimony  of  defendant  that  decedent  had  given  her 
deed  was  properly  stricken  because  of  witness'  incompetency  to  testify  there- 
to. Randall  v.  Randall,  101  "Kan.  341,  166  P.  516. 

78  Kerr  v.  Kerr,  116  P.  880,  85  Kan.  460. 

™  Grimshaw  v.  Kent,  73  P.  92,  67  Kan.  463. 

so  Gaston  v.  Gaston,  109  P.  777,  83  Kan.  215. 

si  The  issue  being  whether  a  deed  from  a  parent  to  a  child  was  made  as  an 
advancement,  a  statement  by  the  grantee  as  a  witness  that  no  consideration 
was  paid  for  it  is  testimony  as  to  the  transaction  between  him  and  the  gran- 
tor, and,  if  brought  out  by  questions  of  his  opponent,  qualifies  him  to  relate 
all  the  attendant  circumstances,  though  he  would  otherwise  be  incompetent 
to  do  so  because  the  evidence  related  to  personal  transactions  with  a  person 
since  deceased.  Plowman  v.  Nicholson,  105  P.  692,  81  Kan.  210,  judgment  af- 
firmed on  rehearing  Plowman  v.  Same,  106  P.  279,  81  Kan.  210. 

82  poole  v.  Poole,  150  P.  592,  96  Kan.  84,  Ann.  Cas.  1918B,  929. 

The  incompetency  of  a  witness  to  testify  as  to  transactions  or  communica- 
tions had  with  one  since  deceased  is  waived,  where  the  objecting  party  on 
cross-examination  elicits  testimony  as  to  such  transactions,  or  shows  that 
such  transactions  occurred.  Conwill  v.  Eldridge  (Okl.)  177  P.  79. 

ss  Conklin  v.  Yates,  83  P.  910,  16  Old.  266. 

(780) 


Art.  3)  COMPETENCY  AND   PRIVILEGE  §   873 

petent  to  testify  to  conversations  with  a  decedent ;  and  this  is  true, 
though  the  witness  be  interested  in  the  outcome.84 

The  statute  does  not  prohibit  a  person  from  testifying  in  a  case 
between  others  as  to  transactions  and  communications  with  a  dece- 

s*  In  action  to  set  aside  will,  lawyer  who  drew  It  may  testify  to  conversa- 
tion had  with  testator  at  the  time.  Durant  v.  Whitcher,  156  P.  739,  97  K:in. 
603. 

In  action  by  one  to  whom  decedent  had  contracted  to  leave  his  property 
against  executor  and  beneficiary  under  will,  plaintiff's  husband,  not  a  party 
to  action,  was  a  competent  witness  to  prove  the  alleged  contract,  though  hus- 
band and  wife  occupied  part  of  disputed  land  as  homestead.  Harris  v.  Mor- 
rison, 163  P.  1062,  100  Kan.  157. 

Rev.  Laws  1910,  §  5049,  held  not  to  render  incompetent  a  conversation  had 
with  a  person  since  deceased  by  plaintiffs  agent  and  manager,  where  such 
agent  was  not  a  party  to  the  action  or  interested  in  it.  First  Nat.  Bank  of 
El  Reno  v.  Davidson-Case  Lumber  Co.,  52  Okl.  695,  153  P.  836. 

In  action  by  administrator,  widow  and  stepdaughter  of  deceased,  neither 
being  party  to  action,  are  competent  to  testify  to  transactions  had  personally 
by  defendant  with  deceased.  Alexander  v.  Bobier  (Okl.)  166  P.  716. 

On  a  petition  by  administratrix  of  a  partner  for  directions  whether  to  treat 
decedent's  real  estate  as  individual  or  partnership  property,  in  which  vari- 
ous creditors  were  parties,  and  also  decedent's  brother,  who  was  the  sur- 
viving partner,  the  brother  was  not  incompetent  to  testify  to  transactions 
with  decedent,  over  objection  of  a  creditor.  Sarbach  v.  Sarbach,  122  P.  1052, 
86  Kan.  894. 

Plaintiff,  suing  to  recover  land  claimed  as  being  the  wife  of  the  dece- 
dent, where  defendants  are  the  grandchildren  and  great-grandchildren  of  the 
decedent  who  acquire  their  interest  through  the  daughter  of  the  decedent,  is 
not  prohibited  from  testifying  to  transactions  personally  had  with  tbfe  dece- 
dent, as  the  parties  adverse  did  not  acquire  their  title  immediately  from  the 
decedent.  Williams  v.  Campbell,  113  P.  800,  84  Kan.  46,  judgment  affirmed 
on  rehearing  118  P.  1074,  85  Kan.  631. 

Testimony  of  a  maker  of  a  note,  not  made  a  party  in  a  suit  thereon,  that 
he  was  the  principal  and  defendant  a  surety,  and  that  the  deceased  payee 
had,  for  a  valuable  consideration  and  without  the  knowledge  of  the  surety, 
extended  the  time  of  the  payment  thereof,  is  admissible.  Roger  v.  Arm- 
strong, 83  P.  1029,  72  Kan.  691. 

The  fact  that  a  witness  was  a  party  to  an  action  to  which  the  representa- 
tives of  a  decedent  were  parties  did  not  preclude  him  from  testifying  as  to 
matters  occurring  in  decedent's  lifetime,  where  he  had  no  interest  in  the  sub- 
ject-matter of  the  suit,  and  made  a  disclaimer.  Murphy  v.  Colton,  44  P.  208, 
4  Okl.  181. 

A  father  gave  each  of  two  sons  a  tract  of  land,  on  oner  of  which  tracts  was 
a  mortgage,  and  in  order  to  equalize  the  gifts  it  was  claimed  that  it  was 
agreed  each  son  should  pay  one-half  of  the  mortgage.  Before  the  debt  was 
paid,  the  son  whose  land  was  free  from  incumbrance  died,  and  the  other  son 
sued  the  decedent's  administrator  to  recover  half  the  mortgage  debt.  Held, 
that  the  mother,  who  joined  the  father  in  the  conveyance  not  being  an  as- 
signor of  the  thing  in  action,  was  not  precluded  from  testifying  as  to  the 

(781) 


§  873  WITNESSES  (Ch.  14 

dent  from  whom  the  parties  claim  title.85  It  does  not  prohibit  proof 
of  transactions  and  communications  had  personally  between  a  party 
to  the  suit  and  the  deceased  grantee  of  such  person  by  disinterested 
witnesses  or  other  competent  evidence,  other  than  that  of  a  party 
to  the  suit.96 

The  word  "party"  within  the  Code  provision  prohibiting  a  party 
from  testifying  concerning  personal  transactions  and  communica- 
tions with  a  person  since  deceased,  does  not  include  one  not  tech- 
nically a  party  to  the  action,  however  much  he  may  be  interested 
in  the  result  thereof.87 

A  party  to  an  action  may  testify  to  conversations  occurring  in 
his  presence  between  deceased  persons,  where  the  opposite  party 
claims  as  heir  of  one  of  such  deceased  persons.88 

The  statutory  provisions  relating  to  testimony  as  to  transactions 
or  communications  with  a  decedent  do  not  apply  where  the  trans- 
action or  communication  was  not  between  the  witness  and  the  de- 
ceased person,  but  was  between  the  latter  and  a  third  party,  and 

agreement  with  reference  to  the  mortgage  debt.  Miller  v.  McDowell,  64  P. 
980,  63  Kan.  75. 

Neither  a  sheriff  levying  an  attachment  on  personalty  nor  the  attachment 
creditor  is  an  "assignee"  of  the  attachment  debtor;  and  hence  a  vendee  of 
a  deceased  attachment  debtor  may,  in  an  action  by  him  against  the  sheriff 
and  the  attaching  creditor  for  conversion  of  the  property,  testify  in  his  own 
behalf  to  the  transaction  whereby  he  claims  title  from  decedent.  Burlington 
Nat.  Bank  v.  Beard,  42  P.  320,  55  Kan.  773. 

An  objection  to  the  introduction  of  the  stenographer's  transcript  of  testi- 
mony of  a  deceased  grantor  as  incompetent  was  properly  overruled.  New  v. 
Smith,  145  P.  880,  94  Kan.  6,  L.  R.  A.  1915F,  771,  Ann.  Gas.  1917B,  362. 

ss  Hess  v.  Hartwig,  132  P.  148,  89  Kan.  599. 

ss  Conklin  v.  Yates,  83  P.  910,  16  Okl.  266. 

It  does  not  apply  to  an  agent  of  a  party  to  the  action,  such  agent  not  being 
a  party  to  the  action,  nor  having  any  legal  interest  in  the  result  of  it.  Car- 
roll v.  Chipman,  57  P.  979,  8  Kan.  App.  820. 

ST  Hess  v.  Hartwig,  112  P.  99,  83  Kan.  592. 

In  suit  on  note  and  to  foreclose  mortgage,  plaintiff's  testimony,  transac- 
tions with  a  decedent,  as  to  execution  of  note  and  mortgage,  was  admissible, 
where  he  was  neither  executor,  administrator,  heir  at  law,  next  of  kin,  sur- 
viving partner,  nor  assignee  of  deceased.  Phinnie  v.  Atkinson  (Okl.)  177  P. 
111. 

That  witness  might  be  interested  in  outcome  of  suit  does  not  render  her 
incompetent.  Alexander  v.  Bobier  (Okl.)  166  P.  716. 

Nor  does  it  exclude  the  officers  of  a  corporation  which  may  be  a  party,  or 
other  interested  persons  not  parties  to  the  action.  Mendenhall  v.  School  Dist. 
No.  83,  Jewell  County,  90  P.  773,  76  Kan.  173. 

ss  Page  v.  Sawyer,  101  Kan.  612,  168  P.  878. 

(782) 


Art.  3)  COMPETENCY  AND  PRIVILEGE  §   874 

was  not  taken  part  in  by  the  witness.89     So,  too,  the  letters  of  a 
deceased  do  not  come  within  the  prohibitions  of  the  Code.90 

§  874.     Witness  privileged  from  being  sued 

"A  witness  shall  not  be  liable  to  be  sued  in  a  county  in  which  he 
does  not  reside,  by  being  served  with  a  summons  in  such  county, 
while  going,  returning  or  attending,  in  obedience  to  a  subpoena."  91 

89  Fry  v.  Fry,  43  P.  235,  56  Kan.  291. 

»o  Letters  written  by  a  person  since  deceased  to  his  son,  who  is  seeking  to 
recover  property  deeded  by  his  father  to  another,  -held  admissible  to  show 
mental  capacity  of  deceased  when  they  were  written  and  the  deed  executed. 
Munger  v.  Myers,  153  P.  497,  96  Kan.  743. 

In  action  to  enforce  promise  of  decedent  to  devise  property  to  plaintiffs, 
testimony  as  to  the  receipt  of  letters,  which  in  the  opinion  of  the  witness 
were  in  the  handwriting  of  decedent,  held  not  objectionable  as  stating  a  per- 
sonal transaction  with  decedent.  Dillon  v.  Gray,  123  P.  878,  87  Kan.  129. 

The  statute  has  no  application  to  the  adinissibility  in  evidence,  in  an  ac- 
tion to  establish  a  resulting  trust,  of  a  letter  written  by  defendants'  intestate 
to  plaintiff,  wherein  he  stated  that  he  held  the  real  estate  in  question  •as  her 
agent.  Garten  v.  Trobridge,  104  P.  1067,  80  Kan.  720. 

In  an  action  by  an  administrator  to  recover  money  lent  to  defendant  by 
decedent,  testimony  by  defendant  that  money  for  payment  of  the  debt  was 
inclosed  in  an  envelope,  taken  to  the  post  office,  and  that  certain  steps  were 
there  taken  to  have  the  postmaster  register  the  letter  and  send  it  to  decedent 
In  a  distant  state,  and  also  that  in  due  time  defendant  received  a  writing 
acknowledging  receipt  of  the  money,  which  writing  was  identified  and  intro- 
duced in  evidence  was  not  incompetent.  Bryan  v.  Palmer,  111  P.  443,  83 
Kan.  298,  21  Ann.  Cas.  1214. 

»i  Rev.  Laws  1910,  §  5064. 

Where  one  of  the  parties  to  an  action  is  an  heir  of  a  deceased  person,  who 
claims  that  the  title  to  the  land  in  controversy  was  transferred  to  his  an- 
cestor by  the  adverse  party,  such  adverse  party  may  testify  that  he  had  no 
transaction  personally  with  the  deceased,  and  that  no  transfer  of  title  was 
ever  made  by  him  to  the  deceased.  Murphy  v.  Hindman,  48  P.  850,  58  Kan. 
184. 

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§  875  WITNESSES  (Ch.  14 

< 
ARTICLE  IV 

CREDIBILITY  AND  IMPEACHMENT 

Sections 

875.  Credibility. 

876.  Corroboration. 

877.  Impeachment. 

878.  Impeaching  own  witness. 

879.  Character  and  conduct  of  witness. 

880.  Reputation — Place  and  time  of  acquiring. 

881.  Particular  facts. 

882.  Conviction  of  crime. 

883.  Cross-examination   to   test   reliability   or   to   discredit. 

884.  Conduct  in  reference  to  the  case. 

885.  Inconsistent  statements. 

886.  Contradicting  witness. 

887.  Prior  corroborating  statements. 

888.  Sustaining  evidence- 

§  875.     Credibility 

A  witness  may  be  examined  as  to  occupation,  social  connections, 
and  manner  of  living  to  affect  his  credibility.92 

The  jury  are  the  exclusive  judges  of  the  credibility  of  witnesses 
and  the  weight  of  the  evidence,  and  the  value  to  be  given  to  their 
testimony,  and  they  may,  if  they  think  proper,  reject  the  whole  of 
the  testimony  of  such  witness,  who  they  may  find  has  willfully  tes- 
tified falsely  to  a  material  fact,  or  may  give  it  such  weight  where 
it  has  been  corroborated  by  credible  evidence  as  they  may  deem  it 
entitled  to  have.93 

92  Musgraves  v.  State,  106  P.  544,  3  Okl.  Cr.  421. 

»3  Henry  v.  State,  119  P.  278,  6  Okl.  Cr.  430. 

Jury  is  sole  judge  of  credibility  of  witnesses,  and  whether  witness  has  in- 
terest in  outcome  of  trial  is  proper  to  be  elicited  for  jury's  consideration. 
Jones  v.  State,  15  Okl.  Cr.  547,  179  P.  619. 

An  instruction  that,  if  the  jury  believed  that  any  witness  has  willfully 
testified  falsely  in  a  material  matter,  they  may  disregard  his  entire  testimony, 
need  not  make  an  exception  in  favor  of  such  portion  thereof  as  is  corrobo- 
rated. Robert  Burgess  &  Son  v.  Alcorn,  90  P.  239,  75  Kan.  735. . 

An  instruction  that  if  the  jury  believe  a  witness  has  sworn  falsely,  they 
may  reject  his  testimony  or  any  part  of  it,  is  erroneous;  as,  unless  the  tes- 
timony was  willfully  false,  it  is  no  ground  for  disregarding  the  entire  testi- 
mony of  the  witness.  Barney  v.  Dudley,  19  P.  550,  40  Kan.  247. 

The  fact  that  a  person  may  voluntarily  come  from  another  state  and  with- 
out process  appear  and  testify  in  court  does  not  impair  his  competency  as  a 
witness,  nor  necessarily  deprive  his  testimony  of  probative  force.  Tiinina  v. 
Timma,  82  P.  481,  72  Kan.  73. 

(784) 


Art.  4)  CREDIBILITY  AND  IMPEACHMENT  §§   876~878 

§  876.     Corroboration 

Where  no  attack  is  made  upon  the  credibility  of  a  witness  his 
prior  statements  are  inadmissible.94 

On  a  trial  to  a  jury,  where  the  defendant  testifies  in  his  own  be- 
half and  is  not  impeached,  it  is  reversible  error  to  permit  him  to 
introduce  evidence  of  his  general  reputation  for  truth  and  verac- 
ity.95 . 

§  877.     Impeachment 

Where  a  person  does  not  testify  at  the  trial,  his  reputation  for 
truth  cannot  be  made  an  issue  of  the  cause.90 

A  notary  public  is  a  ministerial  officer,  and  his  evidence  is  com- 
petent to  impeach  his  certificate.97 

§  878.     Impeaching  own  witness 

The  rule  that  a  litigant  cannot  impeach  his  own  witnesses  usual- 
ly forbids  his  attempt  to  impeach  a  witness  whom  he  himself  first 
uses,  though  the  witness  is  afterwards  called  to  testify  on  behalf 
of  the  adverse  party.98 

The  court  may,  however,  in  its  discretion,  in  the  interest  of  truth 
and  justice,  permit  a  party  to  impeach  his  own  witness.99 

94  Jones  v.  State,  9  Okl.  Cr.  646,  133  P.  249,  48  L.  R.  A.  (X.  S.)  204. 

95  First  Nat.  Bank  v.  Blakeman,  91  P.  868,  19  Okl.  106,  12  L.  R.  A.  (X. 
S.)  364. 

as  State  v.  Chenute,  70  P.  870,  65  Kan.  862. 

97  Effenberger  v.  Durant,  57  Okl.  445,  156  P.  212. 

98  Johnston  v.  Marriage,  86  P.  461,  74  Kan.  208,  rehearing  denied  87  P.  74, 
74  Kan.  208 ;   McCauley  v.  Custer,  143  P.  489,  93  Kan.  27. 

A  party  introducing  a  witness  in  his  behalf  cannot  impeach  his  character 
for  truth  and  veracity.  National  Surety  Co.  v.  Oklahoma  Nat.  Life  Ins.  Co. 
(Okl.)  165  P.  161. 

A  party  offering  a  witness  should  not  be  permitted  to  discredit  his  testi- 
mony, but,  when  the  testimony  is  in  the  nature  of  conclusions,  it  is  the  duty 
of  the  court  to  say  what  facts  are  established  thereby.  Wass  v.  Tennent- 
Stribbling  Shoe  Co.,  41  P.  339,  3  Okl.  152.  A  party  cannot  impeach  his  own 
witness  by  showing  his  general  bad  character  for  truthfulness.  Sturgis  v. 
State,  102  P.  57,  2  Okl.  Cr.  362.  Nor  can  a  party  placing  a  witness  on  the 
stand,  with  notice  that  he  will  testify  adversely,  claim  surprise  and  be  per- 
mitted to  impeach  him.  Id. 

In  a  criminal  case  the  state  cannot  impeach  the  general  character  for 
truth  and  veracity  of  one  of  its  own  witnesses.  State  v.  Keefe,  38  P.  302, 
54  Kan.  197. 

99  Nuzum  v.  Springer,  156  P.  704,  97  Kan.  744. 

The  question  as  to  whether  a  party  may  impeach  his  own  witness  is  large- 
ly within  the  sound  judicial  discretion  of  the  trial  court ;  and  a  slight  error 

HON.PL.&  PRAC.— 50  (785) 


§§  878-879  WITNESSES  (Ch.  14 

Where  a  witness  has  been  called  by  all  the  parties  to  the  action, 
cross-examination  which  tends  to  impeach  him  is  within  trial 
court's  sound  judicial  discretion.1 

Where  witnesses  give  testimony  contrary  to  former  testimony 
and  inconsistent  with  previous  statements,  the  party  calling  them 
may  cross-examine  and  call  attention  to  former  evidence  and  state- 
ments and  offer  testimony  impeaching  the  present  testimony.2 

Where  a  judgment  pleaded  and  offered  in  evidence  as  res  ju- 
dicata,  on  its  face  shows  the  items  on  which  it  was  rendered,  the 
party  who  Telies  on  it  cannot  contradict  it,  and  show  that  it  was 
rendered  on  items  different  from  those  set  out.3 

§  879.    Character  and  conduct  of  witness 

The  truthfulness  of  a  witness  cannot  be  impeached  by  proof  of 
general  bad  character  for  morality ; 4  or  by  proof  of  specific  acts 
showing  want  of  morality ; 5  or  by  testimony  as  to  general  reputa- 
tion for  virtue  and  chastity.6  A  party  is  not  entitled  to  show  that 
a  witness  entertains  a  disbelief  of  the  existence  of  God  for  the  pur- 
pose of  discrediting  his  testimony.7 

Where  plaintiff  testified  in  his  own  behalf,  proof  of  base,  dishon- 
orable, or  criminal  conduct  on  his  part  is  admissible  to  discredit 
him  as  a  witness  and  to  throw  suspicion  upon  his  cause  of  action.8 

Testimony  as  to  the  general  character  of  a  witness  offered  to  im- 
peach him  must  be  as  to  his  reputation  for  truth,  and  testimony 
as  to  his  reputation  for  being  a  bootlegger  is  incompetent.9 

in  such  a  matter,  where  the  testimony  of  the  witness  is  of  small  importance, 
is  not  ground  for  reversal.  St.  Louis  &  S.  F.  Ry.  Co.  v.  Weaver,  11  P.  408, 
35  Kan.  412,  57  Am.  Rep.  176. 

It  was  discretionary  with  the  court  to  permit  the  state  to  prove  that  a 
witness  for  the  state  was  drunk  at  a  certain  time  about  which  he  testified 
both  on  direct  and  on  cross  examination.  State  v.  Alexander,  131  P.  139,  89 
Kan.  422.  - 

1  A  very  v.  Howell,  171  P.  628.  102  Kan.  527. 

2  State  v.  Terry,  161  P.  905,  98  Kan.  796. 

s  Guttermann  v.  Schroeder,  20  P.  230.  40  Kan.  507. 

4  Litchfield  v.  State,  126  P.  707,  8  Okl.  Cr.  164,  45  L.  R.  A.  (N.  S.)  153. 

s  Litchfield  v.  State,  126  P.  707,  8  Okl.  Cr.  164,  45  L.  R.  A.  (N.  S.)  153. 

e  Kennedy  v.  Pawnee  Trust  Co.,  126  P.  548,  34  Okl.  140. 

7  Dickinson  v.  Beal,  62  P.  724.  10  Kan.  App.  233. 

s  St.  Louis  &  S.  F.  R.  Co.  v.  Walker.  122  P.  492,  31  Okl.  494. 

s  Upton  v.  State,  12  Okl.  Cr.  593,  160  P.  1134, 

(786) 


-  4)  CREDIBILITY   AND   IMPEACHMENT  §    880 

§  880.     Reputation — Place  and  time  of  acquiring 

Where  the  purpose  of  testimony  is  to  impeach  a  witness  for 
truth  and  veracity,  the  inquiry  must  be  as  to  his  general  character 
or  reputation  for  truth  and  veracity  in  the  community  in  which  he 
resides.10 

10  Richards  v.  State,  12  Okl.  Cr.  224,  154  P.  72. 

That  witnesses  have  a  reputation  in  the  vicinity  of  their  residence  for 
untruthfulness  may  be  shown  for  purposes  of  Impeachment.  Stevens  v. 
Blake,  48  P.  888,  5  Kan.  App.  124. 

Under  the  common  law,  made  applicable  by  the  statute,  testimony  to  im- 
peach a  witness  for  want  of  veracity  must  be  confined  to  his  general  char- 
acter or  reputation  therefor  where  he  resides.  Kirk  v.  State,  11  Okl.  Cr.  203, 
145  P.  307 ;  Rev.  Laws  1910,  §  5543. 

A  witness,  who  had  lived  for  many  years  in  another  state,  had  removed 
to  his  place  of  residence  at  the  time  of  the  trial  only  a  few  months  previous 
thereto.  Held,  that  evidence  as  to  his  reputation  for  truth  and  veracity  in 
the  place  of  his  former  residence  was  competent  to  impeach  him.  Coates  v. 
Sulau,  26  P.  720,  46  Kan.  341. 

Where  the  prosecutrix  has  recently  lived  in  the  neighborhood  of  the  wit- 
ness, which  is  about  five  miles  from  her  own  home,  and  is  generally  acquaint- 
ed in  that  neighborhood,  and  such  witness  knows  the  general  reputation  of 
the  prosecutrix  for  chastity  in  s'uch  neighborhood,  but  does  not  know  her 
general  reputation  for  chastity  in  the  particular  neighborhood  in  which  she 
resides  at  the  time  of  the  trial,  such  witness  may  be  permitted  to  give  evi- 
dence of  her  general  reputation  for  chastity  in  his  neighborhood.  The  means 
and  extent  of  the  witness'  knowledge  under  the  circumstances  are  matters 
which  affect  the  credibility,  but  not  necessarily  the  competency,  of  the  wit- 
ness. State  v.  Bryan,  8  P.  260,  34  Kan.  63. 

A  person  who  states  that  he  is  not  much  acquainted  with  the  general  rep- 
utation for  veracity  of  a  witness  in  the  community  where  he  lived,  and  that 
he  cannot  say  exactly  what  his  reputation  is,  is  not  competent  to  testify  as 
to  his  reputation.  Redden  v.  Tefft,  29  P.  157,  48  Kan.  302. 

Where  a  defendant,  on  trial  for  larceny,  introduced  evidence  to  establish 
his  good  character  for  honesty,  it  was  error  to  permit  witnesses  on  behalf  of 
the  state  to  testify  in  rebuttal  that  the  accused,  together  with  three  other 
persons  not  on  trial,  sustained  bad  reputations  in  that  respect,  since  the  rep- 
utation of  such  other  persons  was  not  in  issue,  and  the  testimony  imported  a 
collateral  issue  into  the  case.  State  v.  Beaty,  62  P.  658.  62  Kan.  266. 

In  a  prosecution  for  larceny,  it  was  not  error  to  exclude  questions  asked 
witnesses  tending  to  show  that  certain  relatives  of  the  prosecuting  witness 
had  been  convicted  of  crime  and  sentenced  to  the  penitentiary.  State  v.  Taw- 
ney,  112  P.  161,  83  Kan.  603. 

A  witness,  who  stated  that  he  knew,  relative  to  the  character  of  the  prose- 
cutrix, only  what  he  had  heard  from  several  families  with  whom  she  bad 
lived,  and  that  he  had  no  knowledge  of  her  general  reputation,  held  incom- 
petent to  testify  as  to  her  general  reputation  for  truthfulness.  State  v. 
Evans,  136  P.  270,  90  Kan.  795,  judgment  anirmed  on  rehearing  140  P.  892, 
92  Kan.  468. 

A  person  who  had  known  a  witness  20  years  and  lived  near  her  a  large 

(787) 


WITNESSES  (Ch.  14 

It  is  competent  to  ask  an  impeaching  witness,  who  has  testified 
that  the  general  reputation  of  another  witness  for  truth  and  verac- 
ity in  the  vicinity  in  which  he  lives  is  bad,  whether  he  would  give 
him  full  credit  upon  his  oath.11 

§  881. Particular  facts 

The  previous  occupation,  companions,  and  associates  of  a  wit- 
ness are  proper  subjects  of  inquiry  for  the  purpose  of  affecting  his 
credibility.12  He  may  be  cross-examined  as  to  specific  facts  tend- 
ing to  disgrace  or  degrade  him,  although  collateral  to  the  main  is- 
sue, and  touching  on  matters  of  record.13 

Proof  of  disreputable  conduct  of  a  witness  should  be  allowed 
only  in  the  exercise  of  a  sound  judicial  discretion.14 

The  state  may  show  on  cross-examination  the  relations  between 
a  witness  and  accused,  so  far  as  such  relation  would  tend  to  show 
bias  affecting  his  credibility,  though  prejudice  to  defendant  might 
result  therefrom.10 

An  examination  for  the  purpose  of  impeachment  must  not  ques- 
tion accused's  violation  of  any  specific  law.16 

A  man  and  his  wife,  prosecuting  witnesses,  cannot  be  compelled 

portion  of  the  time,  though  living  ten  miles  distant  at  the  time  of  the  trial, 
is  competent  to  testify  to  her  reputation  for  truth.  State  v.  Ball,  144  P. 
1012,  93  Kan.  606. 

11  State  v.  Johnson,  19  P.  749,  40  Kan.  266. 

12  Terry  v.  State,  122  P.  559,  7  Old.  Or.  430. 

While  it  is  improper  to  impeach  a  witness  by  showing  that  he  has  been  in- 
dicted, arrested,  or  imprisoned  for  crime  before  conviction,  yet  his  occupation 
and  companions  may  be  shown,  when  they  indicate  a  want  of  moral  charac- 
ter. Crawford  v.  Ferguson,  115  P.  278,  5  Okl.  Cr.  377,  45  L.  R.  A.  (N.  S.)  519. 

On  cross-examination  of  a  witness  to  affect  his  credibility,  questions  as  to 
his  social  connections  and  manner  of  living,  or  which  tend  to  explain,  con- 
tradict, or  discredit  his  testimony  in  chief,  to  show  his  conviction  of  crime, 
are  admissible.  Murphy  v.  State,  15  Okl.  Cr.  312,  176  P.  417. 

is  State  v.  Greenburg,  53  P.  61,  59  Kan.  404. 

For  the  purpose  of  impairing  his  credibility,  a  witness  who  gives  material 
evidence  may  be  cross-examined  as  to  his  past  conduct  and  character,  and 
as  to  specific  acts  tending  to  discredit  him.  State  v.  Abbott,  69  P.  160,  65 
Kan.  139. 

i*  Castleberry  v.  State,  139  P.  132,  10  Okl.  Cr.  504. 

Evidence  as  to  arrest  of,  a  witness  for  immoral  acts  with  a  woman  in  a 
rooming  house  cannot  be  properly  put  in  evidence  to  discredit  such  witness. 
National  Surety  Co.  v.  Oklahoma  Nat.  Life  Ins.  Co.  (Okl.)  165  P.  161. 

is  Daggs  v.  State,  12  Okl.  Cr.  289,  155  P.  489. 

ic  Sims  v.  State,  11  Okl.  Cr.  382,  14G  P.  914. 

(788) 


Art.  4)  CREDIBILITY    AND  IMPEACHMENT 

on   cross-examination   to  answer  questions  as  to  their  marriage, 
to  affect  their  credibility.17 

§  882.     Conviction  of  crime 

To  test  the  credibility  of  a  witness  he  may  <be  asked  on  cross-ex- 
amination as  to  his  having  been  convicted  of  any  crime;18  but  it 
is  improper  to  ask  a  witness,  to  affect  his  credibility,  whether  he 
has  ever  been  indicted  or  arrested  or  imprisoned  for  crime.1* 

Where  a  witness  has  been  cross-examined  as  to  a  conviction 
of  a  felony,  the  court  may  require  him  to  state  of  what  felony  he 
has  been  convicted.20 

IT  Flohr  v.  Territory,  78  P.  565,  14  Okl.  477. 

18  Davis  v.  State,  15  Okl.  Cr.  386,  177  P.  621;  Murphy  v.  State,  15  Okl.  f'r. 
312,  176  P.  417. 

Under  Rev.  Laws  1910,  §  5046,  a  witness  upon  cross-examination  may  be 
asked  whether  he  has  ever  been  convicted  of  felony  or  a  crime  involving 
moral  turpitude  in  order  to  affect  his  credibility.  Chase  v.  Cable  Co.  (Okl.) 
170  P.  1172. 

In  ejectment,  held  not  error  to  permit  a  witness  to  be  asked  whether  he 
had  ever  been  convicted  of  a  crime  in  the  tribal  courts  of  the  Semiuole  Na- 
tion. Perkins  v.  Baker,  137  P.  661,  41  Okl.  288. 

It  is  competent  to  ask  a  witness  if  he  has  been  convicted  of  violating  the- 
prohibition  laws.  Missouri,  K.  &  T.  Ry.  Co.  v.  Johnson,  126  P.  567,  34  Okl, 
582. 

In  a  prosecution  for  perjury  alleged  to  have  been  committed  in  a  criminal 
case,  it  was  not  error  for  the  state  to  ask  a  witness  for  accused  if  he  too 
was  not  under  indictment  for  perjury  committed  on  the  same  trial.  Cray  v. 
State,  111  P.  825,  4  Okl.  Cr.  292,  32  L.  R.  A.  (N.  S.)  142. 

That  a  witness  has  been  convicted  of  bootlegging  may  be  shown  to  impeach 
his  credibility.  Fowler  v.  State,  126  P.  831,  8  Okl.  Cr.  130;  Crawford  v. 
Ferguson,  115  P.  278,  5  Okl.  Cr.  377,  45  L.  R.  A.  (N.  S.)  519. 

i»  Musgraves  v.  State,  106  P.  544,  3  Okl.  Or.  421. 

It  is  improper  to  ask  a  witness  on  cross-examination  "if  he  has  not  been 
arrested  and  confined  in  jail  for  a  crime."  Files  v.  State,  16  Okl.  Cr.  363, 
182  P.  911. 

It  is  improper  to  ask  a  witness  if  he  has  ever  been  indicted  Or  imprisoned 
before  conviction  for  any  offense  whatever.  Porter  v.  State,  126  P.  699,  8 
Okl.  Cr.  64. 

For  the  purpose  of  impeaching  the  credibility  of  a  witness,  he  may  be  ask- 
ed on  cross-examination  if  he  has  been  convicted  of  a  felony  or  any  criiiu- 
involving  a  want  of  moral  character,  but  it  is  improper  to  ask  him  if  he  has 
been  indicted,  arrested,  or  imprisoned  before  the  conviction  of  said  witness 
for  any  offense  whatever.  Price  v.  United  States,  97  P.  1056,  1  Okl.  Cr.  i".U  : 
Slater  v.  United  States,  98  P.  110,  1  Okl.  Cr.  275 ;  White  v.  State,  111  P.  1010. 
4  Okl.  Cr.  143 ;  Hendrix  v.  State,  113  P.  244,  4  Okl.  Cr.  611 ;  Nelson  v.  State, 
106  P.  647/3  Okl.  Cr.  468;  Caples  v.  State,  104  P.  493,  3  Okl.  Cr.  72.  2«>  L. 
R.  A.  (N.  S.)  1033 ;  Keys  v.  United  States,  103  P.  874,  2  Okl.  Cr.  647. 

20  McDaniel  v.  State,  127  P.  358,  8  Okl.  Cr.  209. 

(789) 


§§  882-883  WITNESSES  (Ch.  14 

Where  evidence  of  a  witness'  conviction  in  a  foreign  state  has 
been  admitted,  it  is  not  error  to  exclude  facts  relating-  to  the  con- 
viction, but  offered  to  contradict  the  witness'  testimony  as  to  the 
facts  on  which  the  conviction  was  had.21 

Where  a  defendant  is  witness  for  himself,  he  may  be  asked 
whether  he  has  been  convicted  of  a  felony  or  offense  showing  want 
of  moral  character  to  affect  his  credibility  as  a  witness,  though  an 
appeal  is  pending  from  the  conviction  in  question.22 

Proof  of  defendant's  prior  conviction  to  affect  his  credibility  may 
be  made  either  by  record,  or  by  his  cross-examination,  as  to  other 
separate  offenses  limited  to  proof  of  the  offense  charged  and  to 
matters  pertinent  to  the  issue.23 

§  883.    Cross-examination  to  test  reliability  of  to  discredit 

The  scope  of  cross-examination  as  to  the  past  conduct  of  a  wit- 
ness, to  discredit  him,  is  largely  discretionary.24 

On  cross-examination    a  witness    may  be    asked  any    question 

21  Parker  v.  Hamilton,  49  Okl.  693.  154  P.  65. 

22  Manning  v.  State,  123  P.  1029,  7  Okl.  Cr.  367. 

Under  Rev.  Laws  1910,  §  5046,  providing  that  a  witness  may  be  discredited 
by  showing  his  conviction  of  a  criminal  offense,  an  accused  who  testifies  in 
his  own  behalf  may  be  asked  on  cross-examination  whether  he  has  been  con- 
victed of  a  particular  crime.  Key  v.  State,  10  Okl.  Cr.  206,  135  P.  950. 

A  defendant  in  a  criminal  prosecution  who  voluntarily  becomes  a  witness 
in  his  own  behalf  is  subject  to  the  same  rule  as  any  other  witness,  and  may 
be  asked  by  the  state,  on  cross-examination,  if  he  had  not  been  convicted  of 
larceny  at  the  previous  term  of  the  same  court  in  which  he  was  being  tried. 
State  v.  Probasco,  26  P.  749,  46  Kan.  310,  following  Same  v.  Pfefferle,  12  P.  406, 
36  Kan.  90. 

23  Smith  v.  State,  14  Okl.  Cr.  348,  171  P.  341. 

To  affect  the  credibility  of  a  witness  for  plaintiffs,  defendants  may  introduce 
an  authenticated  record  showing  a  conviction  for  felony  of  a  person  of  the 
same  name  as  the  witness  without  other  proof  of  identity.  Bayha  v.  Muniford. 
49  P.  601,  58  Kan.  445. 

-*  State  v.  Moberly,  136  P.  324,  90  Kan.  837;  Cockrill  v.  Missouri,  K.  &  T. 
Ry.  Co.,  136  P.  322,  90  Kan.  650. 

Refusing  to  permit  a  witness  who  had  turned  "state's  evidence,"  being  charg- 
ed with  the  same  crime  as  defendant,  to  be  cross-examined  as  to  whether  the 
case  against  her  had  been  set  down  for  hearing,  and  refusing  to  permit  another 
witness,  who  had  expressed  an  opinion  that  the  former  should  not  be  prose- 
cuted, to  be  cross-examined  as  to  his  reasons  therefor,  all  for  the  purpose  of 
further  showing  that  an  agreement  had  been  made  not  to  prosecute  the  first- 
named  witness,  is  not  an  abuse  of  the  discretion  vested  in  the  trial  court  as 
to  the  limit  of  cross-examination  to  discredit  a  witness.  State  v.  Nelson,  5- 
P.  868,  59  Kan.  776. 

Defendant  in  an  action  on  a  note  held  entitled  to  cross-examine  plaintiff  to 

(790) 


Art.  4)  CREDIBILITY  AND   IMPEACHMENT  §   883 

the  answer  to  which  would  tend  to  test  his  means  of  knowledge, 
his  intelligence,  or  the  reliability  of  his  memory.25 

Where  the  general  reputation  of  any  person  is  established  by 
the  opinions  of  witnesses  as  to  the  general  estimate  of  his  char- 
acter, it  is  permissible  on  cross-examination  of  such  witnesses  to 
show  the  sources  of  their  information,  and  to  call  particular  facts 
to  their  attention,  and  to  ask  if  they  ever  heard  of  them,  not  to 
establish  the  truth  of  such  facts,  but  to  test  the  credibility  of  the 
witnesses,  and  to  ascertain  what  weight  or  value  is  to  be  given  to 
their  testimony.26 

A  witness  may  be  asked,  on  cross-examination,  to  test  his  memo- 
ry, if  he  was  not  drunk  at  the  time  referred  to.27  He  may  be  asked 
to  whom,  if  any  one,  he  told  the -facts  to  which  he  testifies.28 

It  is  permissible  to  inquire  into  the  antecedents  of  a  witness,  by 
showing  his  vocation,  manner  of  life,  etc.,  when  the  facts  so'ught 
to  be  elicited  are  pertinent  to  the  issue.29 

It  is  improper  to  ask  a  witness  for  the  sole  purpose  of  impeach- 
ment, if  he  'had  married  a  woman  with  whom  he  had  committed 
adultery.30  He  may  be  required  to  answer  as  to  his  past  conduct 
and  character  and  certain  specific  acts.31  He  may  be  asked  any 


determine  the  accuracy  of  his  general  statement  in  the  nature  of  a  conclusion. 
Leavens  v.  Hoover,  145  P.  877,  93  Kan.  661. 

?*  Henry  v.  State,  119  P.  278,  6  Okl.  Cr.  430. 

Cross-examination  of  a  defendant  on  trial  for  murder  which  tends  to  dis 
credit  his  statement  on  direct  is  proper.  Harding  v.  State,  16  Okl.  Cr.  47. 
180  P.  391. 

26  Stouse  v.  State,  119  P.  271,  6  Okl.  Cr.  415. 

A  witness  to  good  character  may  be  cross-examined  as  to  whether  he  haa 
heard  rumors  of  specific  charges  of  commission  of  acts  inconsistent  with  such 
good  character,  in  order  to  test  his  credibility  and  the  weight  of  his  evidence, 
though  such  rumors  are  inadmissible  unless  confined  to  time  previous  to  crime 
charged.  Pope  v.  State,  15  Okl.  Cr.  162,  175  P.  727. 

27  State  v.  Jennings,  121  P.  1131,  86  Kan.  785. 

On  cross-examination,  it  is  proper  to  inquire  whether  the  witness  was 
drinking  intoxicating  liquors  at  the  time  or  shortly  before  the  occurrence  as 
to  which  he  testifies.  Rogers  v.  State.  127  P.  365,  8  Okl.  Cr.  226. 

28  State  v.  McKinney,  3  P.  356,  31  Kan.  570. 

29  Sights  v.  State,  13  Okl.  Cr.  627,  166  P.  458. 

80  Caples  v.  State,  104  P.  493,  3  Okl.  Cr.  72,  26  L.  R.  A.  (N.  S.)  1033;  Price 
v.  State,  98  P.  447,  1  Okl.  Cr.  358. 

31  Garvin  v.  Garvin,  123  P.  717,  87  Kau.  97. 

A  witness  may  be  cross-examined  as  to  his  manner  of  living  and  his  com- 
panions, as  affecting  his  credibility.  Fowler  v.  State,  126  P.  831,  8  Ok).  Cv 

(791) 


§  883  WITNESSES  (Ch.  14 

question  tending  to  impeach  his  accuracy,  memory,  veracity,  or 
character,  though  the  matters  involved  in  the  question  go  beyond 
the  scope  of  the  examination  in  chief.32 

On  cross-examination,  it  is  competent  to  prove  any  facts  showing 
bias,  friendship,  or  relationship.33 


130.  A  witness  may  be  cross-examined  as  to  his  occupation,  for  the  purpose  of 
affecting  his  credibility.  Id. 

A  witness  on  cross-examination  may  be  interrogated  to  impair  his  credibility 
concerning  his  past  conduct  and  character  and  as  to  specific  acts  tending  TO 
discredit  him,  tnough  irrelevant  and  collateral  to  the  principal  controversy. 
State  v.  Pugh,  90  P.  242,  75  Kan.  792. 

A  witness  may  be  cross-examined  as  to  specific  acts  tending  to  discredit  her, 
where  relevant  to  the  issue.  Cannon  v.  Territory,  99  P.  622,  1  Okl.  Cr.  600. 

32  Hopkins  v.  State,  9  Okl.  Cr.  104,  130  P.  1101,  Ann.  Cas.  1915B,  736. 

33  Gilbert  v.  State,  129  P.  671,  8  Okl.  Cr.  543,  denying  rehearing  128.  P.  1100, 
8  Okl.  Cr.  543. 

On  cross-examination  a  witness  may  be  asked  any  question  the  answer  to 
which  would  tend  to  test  his  bias,  prejudice,  or  interest  in  the  case.  Henry 
v.  State,  119  P.  278,  6  Okl.  Cr.  430. 

An  attorney  testifying  as  a  witness  for  his  client  may  be  asked  on  cross- 
examination  if  he  has  an  interest  in  the  judgment  to  be  recovered  as  part  of 
his  fees  to  show  bias  and  to  affect  his  credibility.  Wallace  v.  Kopenbrink,  31 
Okl.  26,  119  P.  579. 

Where  a  witness  though  on  cross-examination  gives  testimony  adverse  to 
the  party  cross-examining,  showing  his  interest  or  bias  in  the  case,  or  lack  of 
it,  such  party  is  not  bound  to  accept  the  statements  of  such  witness  as  con- 
clusive, but  may  offer  proof  contradictory  thereof  and  tending  to  establish 
the  existence  of  facts  to  the  contrary.  Gibbons  j.  Territory,  115  P.  129,  5  Okl. 
Cr.  212. 

In  a  prosecution  for  statutory  rape,  the  state,  on  cross-examination,  may 
show  the  relations  existing  between  the  witness  and  defendant  so  far  as  they 
might  create  a  bias  affecting  the  witness'  credibility,  though  such  evidence 
would  probably  prejudice  the  defendant.  Castleberry  v.  State,  139  P.  132,  10 
Okl.  Cr.  504. 

It  is  not  error  on  cross-examination  to  ask  a  witness  for  defendant  any  ques- 
tion reasonably  calculated  to  disclose  his  interest  in  the  trial,  and,  where  a 
witness  has  signed  an  affidavit  for  change  of  venue,  the  prosecution  may  ask 
him  in  relation  thereto.  Miller  v.  Territory,  85  P.  239,  15  Okl.  422,  judgment 
reversed  Same  v.  Territory  of  Oklahoma,  149  F.  330,  79  C.  C.  A.  268,  9  Ann. 
Cas.  38)). 

It  is  a  general  rule  that  any  question  may  be  put  to  a  witness  on  cross- 
examination,  the  answer  to  which  may  have  a  tendency  to  show  bias  or 
prejudice  on  the  part  of  the  witness.  State  v.  Krum,  4  P.  621,  32  Kan.  372. 
On  cross-examination,  an  adverse  witness  may  be  questioned  as  to  his  inti- 
macy with  a  person  wnom  the  party  he  is  testifying  against  caused  to  be 
arrested,  if  followed  by  evidence  tending  to  show  a  conspiracy  between  wit- 
ness and  such  person  to  furnish  evidence.  Id. 

A  witness  who  admits  ill  will  or  prejudice  against  one  of  the  parties  to  an 

(792) 


Art.  4)  CREDIBILITY  AND  IMPEACHMENT  §§    88'J 

It  is  proper  to  allow  a  searching  cross-examination  of  detectives 
to  show  their  interest  and  thereby  affect  their  credibility.34 

§  884.     Conduct  in  reference  to  the  case 

For  impeachment  purposes,  and  thereby  to  throw  suspicion  on 
the  cause  of  action,  defendant  may  prove  that  a  witness  for  plain- 
tiff, in  furtherance  of  the  identical  cause,  has  been  guilty  of  base 
or  criminal  conduct.35 

§  885.     Inconsistent  statements 

Where  the  proper  predicate  is  laid,  for  purpose  of  impeachment, 
it  may  be  shown  that  the  witness  has  made  statements  out  of  court, 
contrary  to  what  he  has  testified  at  the  trial.36 

action  may  nevertheless  be  cross-examined  as  to  the  extent  and  character  of 
that  prejudice.  State  v.  Collins,  5  P.  368,  33  Kan.  77. 

Accused  may  bring  out  on  cross-examination  of  a  witness  against  him, 
facts  showing  that  the  witness'  testimony  may  have  been  influenced  or  colored 
by  intimidation  or  some  selfish  or  personal  motive.-  State  v.  Tawney,  105  P. 
218,  81  Kan.  162,  135  Am.  St.  Rep.  355. 

A  witness  for  defendant,  admitting  on  cross-examination  that  he  had  had 
trouble  with  plaintiff,  growing  out  of  a  lawsuit,  cannot  be  asked  what  judg- 
ment plaintiff  procured  against  him,  as  the  inquiry  would  be  of  no  service  in 
determining  hostile  feeling.  Boldon  v.  Thompson,  50  I'.  131.  00  Kan.  856. 

On  prosecution  for  murder,  it  is  competent  for  accused  to  show,  on  CTOBfr 
examination  of  witness  for  the  state,  that  the  latter,  with  others,  formed  a 
mob  for  the  purpose  of  hanging  defendant.  State  v.  Hamilton,  69  P.  10L'.  <',:> 
Kan.  183. 

Where  a  witness  testified  that  he  was  not  defendant's  agent,  but  acted  in- 
dependently for  himself  in  purchasing  the  goods  sold  by  plaintiff,  a  letter 
addressed  to  plaintiff  by  the  witness,  containing  statements  at  variance  with 
his  testimony,  was  properly  admitted  to  contradict  him.  Gregg  v.  Berkshire. 
62  P.  5oO,  10  Kan.  App.  57t). 

34  De  Graff  v.  State,  103  P.  538,  2  Okl.  Cr.  519. 

In  a  prosecution  for  a  second  violation  of  the  prohibitory  liquor  laws,  th-- 
refusal  to  permit  defendant,  on  cross-examination  of  prosecuting  witness  tn 
ask  if  he  was  not  paid  to  secure  evidence  in  the  case,  intended  to  show  wit- 
nesses' interest,  was  error.  Files  v.  State,  16  Okl.  Cr.  303,  182  P.  911. 

Where  the  testimony  for  the  state  was  entirely  that  of  two  paid  detectives. 
it  was  error  to  sustain  an  objection  by  the  state  to  a  question  asked  one  of 
the  detectives,  on  cross-examination,  concerning  the  amount  paid  him  by  the 
county  attorney  for  his  services.  State  v.  Shew,  57  P.  137,  8  Kan.  App.  679. 

35  Taylor  v.  J.  H.  Wade  &  Co.,  44  Okl.  294,  144  P.  r.59. 
36Kuykendall  v.  Lambert  (Okl.)  173  P.  657;    Smith  v.  State,  108  P.  418,  3 

Okl.  Cr.  6z9 ;  State  v.  Hoerr,  129  P.  153,  88  Kan.  573 ;  State  v.  King,  102  Kan. 
155,  169  P.  557. 

On  a  murder  trial,  where  defendant  elects  to  testify  in  his  own  behalf,  he 
may  be  cross-examined  as  to  admissions  voluntarily  made  that  he  committed 

(793) 


§  885  WITNESSES  (Ch.  14 

The  exclusion  of  impeaching  testimony  as  to  statements  of  a 
witness  is  proper,  where  no  foundation  was  laid  therefor  by  asking 
the  witness  as  to  the  statements.37 

the  homicide,  and,  on  a  denial  by  him,  impeaching  testimony  may  be  intro- 
duced. Btrck  v.  State,  16  Okl.  Or.  356,  182  P.  913. 

Where  a  witness  has  stated  his  opinion  as  to  the  value  of  the  services  of 
attorneys,  it  is  error  to  refuse  to  permit  him  to  be  cross-examined  as  to  any 
prior  statement  or  conduct  inconsistent  with  or  disprobative  of  such  opinion. 
Colley  v.  Sapp,  44  Okl.  16,  142  P.  989,  judgment  affirmed  on  rehearing  44  Okl. 
16,  142  P.  1193. 

Where  the  matter  inquired  about  is  relevant  to  the  issue  and  a  witness  de- 
nies having  made  a  statement  material  thereto,  such  statement,  if  contradic- 
tory to  his  testimony  on  the  trial,  may  be  shown  to  impeach  him.  Hartwell  v. 
State,  15  Okl.  Or.  416,  177  P.  383. 

In  action  for  wrongful  death  of  an  employe",  contradictory  statements  to 
impeach  defendant's  foreman  and  assistant  foreman  held  admissible.  Griffith 
v.  Midland  vaney  R.  Co.,  100  Kan.  300,  166  P.  467. 

Where  a  witness  testifies  to  the  time  and  circumstances  of  defendant's  ap- 
pearance at  a  certain  place  to  show  that  he  was  not  present  when  the  al- 
leged offense  was  committed,  evidence  that  the  witness  had  previously  stated 
that  he  was  asleep  at  the  time  referred  to  is  admissible,  after  his  attention  has 
been  directed  to  the  statement  on  cross-examination.  State  v.  Swartz,  126  P. 
1091,  87  Kan.  852.  < 

At  the  trial  of  a  criminal  action  wherein  the  defendant  was  charged  with 
having  committed  rape  five  times  upon  the  witness  between  the  1st  day  of 
April,  1888,  and  the  1st  day  of  August,  of  the  same  year,  and  her  testimony 
tended  to  show  that  the  offenses  were  committed  in  the  months  of  February, 
March,  and  April,  1887,  it  was  proper  to  ask  on  cross-examination  if  she  did 
not  swear  before  the  grand  jury  that  the  special  offense  about  which  she  was 

"  Robinson  v.  State,  130  P.  121,  8  Okl.  Cr.  667. 

An  expert  who  testified  as  to  the  cause  of  a  boiler  explosion  cannot  be 
impeached  by  proof  that  he  signed  a  verdict  at  the  inquest,  stating  the  cause 
to  be  unknown,  where  his  attention  had  not  been  called  thereto.  Denver  v. 
Atchison,  T.  &  S.  F.  R.  Co.,  150  P.  562,  96  Kan.  154,  Ann.  Cas.  1917A,  1007. 

Before  a  witness  can  be  impeached  by  proof  of  contradictory  statements 
made  in  his  evidence  on  a  former  trial,  such  contradictions  must  be  called  to 
his  attention,  and  it  is  error  to  introduce  them  without  having  laid  any  foun- 
dation. State  v.  Cleary,  19  P.  776,  40  Kan.  287. 

Before  a  witness  can  be  impeached  by  proof  of  contradictory  statements 
out  of  court,  his  attention  must  be  called  to  the  time,  place,  and  person  in 
such  a  manner  that  there  is  a  reasonable  certainty  that  his  attention  will  be 
directed  to  the  alleged  conversation.  Kuhn  v.  Poole,  112  P.  962,  27  Okl.  534. 

Where,  with  a  view  of  impeaching  a  witness,  he  is  asked  if  he  did  not  make  a 
certain  statement  on  a  previous  examination,  and  he  replies  that  "it  amounts 
to  about  the  same  thing,"  he  thereby  practically  admits  the  making  of  the 
statement,  and  his  answer  is  insufficient  as  a  foundation  for  impeachment. 
State  v.  Baluwin,  12  P.  318,  5o  Kan.  1. 

(794) 


Art.  4)  CREDIBILITY  AND   IMPEACHMENT  §   885 

A  witness  cannot  be  impeached  by  contradiction  upon  a  collateral 
matter  brought  out  on  cross-examination.3* 

Previous  contradictory  statements  must  be  confined  to  a  con- 
tradiction of  the  testimony  of  the  wjtness  which  is  injurious  to  the 
impeaching  party.39 

To  impeach  a  witness  by  evidence  of  a  former  statement,  the 
statement  must  be  material  to  the  issues  being  tried.40 

Where  it  is  sought  to  impeach  a  witness  in  a  criminal  case  by 
showing  contradictory  statements  out  of  court,  statements  made  by 

then  testifying  was  perpetrated  on  the  13th  day  of  April,  1888.    State  v.  Spidle, 
22  P.  620,  42  Kan.  441. 

Where,  in  an  action  by  a  head  brakeraan  against  a  railway  company  for  in- 
juries occasioned  by  a  switch  stand  and  the  target  thereof  being  too  close 
to  the  railroad  track  plaintiff  testifies  that  he  had  no  actual  knowledge  how 
close  the  switch  target  was  to  the  track  prior  to  his  injuries,  the  exclusion  of  a 
question,  upon  cross-examination,  whether  after  the  injury  he  did  not  state 
that  he  had  "repeatedly  called  the  attention  of  parties  to  that  target,"  is  er- 
ror. Southern  Kansas  Ry.  Co.  v.  Michaels,  30  P.  408,  49  Kan.  388. 

A  witness  could  be  asked  on  cross-examination  whether  he  had  not  made 
statements  conflicting  witu  his  testimony.  State  v.  Zimmerman,  42  P.  s;-_'s.  ;; 
Kan.  App.  172.  Defendant  was  prosecuted  for  assault  on  the  ground  that  his 
sons  committed  the  offense  in  his  presence,  with  his  consent.  Held,  that  a 
witness  for  the  defense,  who  testified  solely  as  to  the  details  of  a  trip  taken 
by  himself  and  defendant  on  the  day  of  the  assault  to  another  town,  could  not, 
on  cross-examination,  be  asked  whether  he  had  not  told  a  certain  party  that 
his  brother  had  told  witness  that  he,  the  speaker,  and  defendant,  witnessed 
the  assault.  Id. 

That  a  witness  testified  he  had  no  recollection  of  a  conversation  with  plain- 
tiff" as  to  statements  of  defendant,  but,  if  he  had  such  conversation,  what  he 
said  was  true,  held  not  to  render  competent  plaintiff's  testimony  as  to  what  the 
forgotten  statement  was.  Mallinger  v.  Sarbach,  146  P.  1148,  94  Kan.  504. 

38  State  v.  Alexander,  131  P.  139,  89  Kan.  422. 

A  witness  may  not  be  impeached  on  any  matter  collateral  to  the  matter  in  is- 
sue with  a  view  of  eliciting  an  admission  at  variance  between  his  former 
statements,  and  those  testified  to  on  the  trial.  Hartwell  v.  State,  15  Okl.  Cr. 
416,  177  P.  383. 

It  is  not  error  to  refuse  to  permit  the  cross-examination  of  a  witness  on 
collateral  matters,  or  to  refuse  to  permit  other  witnesses  to  testify  to  state- 
ments made  by  such  witness  concerning  a  collateral  matter  for  purposes  of 
impeachment.  State  v.  Sweeney,  88  P.  1078,  75  Kan.  265. 

A  foundation  for  impeachment  cannot  be  laid  by  questions  on  cross-examina- 
tion which  involve  collateral  issues.  State  v.  Sexton,  136  P.  901,  91  Kan.  171. 

3»  Sturgis  v.  State,  102  P.  57,  2  Okl.  Cr.  362. 

40  Bilby  v.  Brockman,  55  Okl.  714,  155  P.  257. 

To  impeach  a  witness  by  showing  that  he  has  made  contradictory  statements, 
the  statements  must  be  material  to  the  issue.  State  v.  Ray,  37  P.  996,  54  Kan. 
160. 

(795) 


§  885  WITNESSES  (Ch.  14 

other  parties  in  the  presence  of  the  witness  are  not  competent,  un- 
less shown  to  have  been  authorized  by  the  witness.41 

The  test  of  admissibility  of  a  contradictory  statement -of  wit- 
ness for  impeachment  is  whether  such  statement  could  be  intro- 
duced independent  of  contradiction,  and  if  not,  it  is  on  a  collateral  is- 
sue and  inadmissible  for  impeachment.42 

Prior  contradictory  statement  of  a  witness  is  not  substantive  tes- 
timony of  proof  of  the  facts  then  stated,  but  may  be  shown  only 
to  affect  his  credibility.43 

Where  a  party  places  a  witness  on  the  stand,  and  he  testifies 
unfavorably  and  differently  to  prior  information  given  the  party, 
he  may  be  impeached  by  proof  of  inconsistent  statements.44 

41  Tucker  v.  Territory,  87  P.  30,7,  17  Okl.  56. 

The  credit  of  a  witness  may  be  impeached  by  showing  that  the  statements 
made  in  his  presence  by  another,  and  which  were  assented  to  and  adopted  by 
him  as  his  own,  are  contrary  to  what  he  has  testified  at  the  trial.  State  v. 
McGaffin,  13  P.  560,  36  Kan.  315.  On  a  prosecution  for  murder,  the  exclusion 
of  testimony  showing  that  statements  made  in  the  presence  of  a  witness,  which 
were  assented  to  and  adopted  by  him  as  his  own,  are  contrary  to  what  he  has 
testified  at  tne  trial,  where  the  conviction  rests  largely  upon  the  evidence  giv- 
en oy  the  witness  sought  to  be  impeached,  is  material  error,  for  which  the 
judgment  should  be  reversed.  Id. 

42  Harriss-Irby  Cotton  Co.  v.  Duncan,  57  Okl.  761,  157  P.  746. 

43  Culpepper  v.  State,  111  P.  679,  4  Okl.  Cr.  103,  31  L.  R.  A.  (N.  S.)  1166,  140 
Am.  St.  Rep.  668. 

44  Bucher  v.   Showalter,  44  Okl.  690,  145  P.  1143. 

Where  a  party  had  been  deceived  or  entrapped  into  placing  a  witness  on  the 
stand,  having  reasonable  ground  to  believe  and  believing  that  the  witness 
would  testify  to  facts  favorable  to  such  party,  and  the  witness  testifies  to  facts 
injurious  to  him  and  conflicting  with  his  previous  statements,  such  party  may 
show  the  previous  statements.  Sturgis  v.  State,  102  P.  57,  2  Okl.  Cr.  362.  A 
party  cannot  impeach  his  own  witness  by  introducing  conflicting  statements: 
made  by  him,  unless  he  shall  testify  injuriously  to  such  party ;  and  the  mere 
fact  that  a  witness  does  not  testify  as  the  party  expected  is  not  sufficient.  Id. 

One  is  not  conclusively  bound  by  the  statements  which  his  own  witness  may 
make ;  and,  if  he  has  been  deceived  by  an  artful  or  hostile  witness,  he  may 
examine  such  witness  as  to  whether  he  had  not  previously  made  contrary 
statements,  and  may,  in  the  discretion  of  the  court,  be  permitted  to  show  what 
such  contrary  statements  were.  State  v.  Sorter,  34  P.  1036,  52  Kan.  531. 

Where  a  party  has  been  entrapped  by  an  artful  or  hostile  witness,  he  may 
examine  the  witness  as  to  contrary  declarations,  and  may,  in  the  discretion 
of  the  court,  be  allowed  to  show  what  such  contrary  declarations  were ;  and 
this  rule  applies  to  the  cross-examination  by  the  state  of  its  own  witnesses. 
State  v.  Moon,  80  P.  597,  71  Kan.  349. 

Where  a  prosecuting  attorney  is  surprised  by  unfavorable  testimony  of  his 
witness,  he  may  read  from  an  affidavit  made  by  the  witness,  relating  to  the 

(790) 


Art.  4)  CREDIBILITY  AND  IMPEACHMENT  §   885 

^ 

A  party  cannot  impeach  his  own  witness  by  proof  of  prior  con- 
tradictory statement,  where  he  has  not  been  misled  by  the  witness, 
who  has  only  failed  to  testify  to  matters  beneficial  to  him.45 

The  fact  that  a  party  to  an  action  in  which  the  bona  fides  of  a 
transaction  is  in  question  uses  his  adversary  as  a  witness  does  not 
preclude  him  from  showing  that  the  adversary  had  made  statements 
contradictry  of  his  testimony  as  original  evidence  of  his  admis- 
sions.40 

A  witness  may  be  impeached  by  showing  that  he  has  testified  in 
another  proceeding  involving  the  same  subject-matter  in  a  manner 
inconsistent  with  his  testimony,  sought  to  be  impeached.47 

Where  the  witness  admitted  on  cross-examination  that  she  gave 
testimony  in  another  proceeding  in  conflict  with  testimony  at  the 
trial,  it  is  not  error  to  reject  evidence  of  such  former  testimony.48 

A  witness  may  explain  contradictory  testimony.49  Where  a  wit- 
same  subject-matter,  and  inquire  if  he  made  such  statements.  State  v. 
Hughes,  56  P.  142,  o  Kan.  App.  631. 

45  Culpepper  v.  State,  111  P.  679,  4  Okl.  Cr.  103.  31  L.  R.  A.   (N.  S.)  1166, 
140  Am.  St.  Rep.  668. 

A  party  cannot  impeach  his  own  witness  by  proof  of  prior  contradictory 
statements,  where  the  party  has  not  been  misled  by  the  witness,  and  where 
the  witness  has  not  testified  to  facts  injurious  to  him.  Paris  v.  United  States 
115  P.  373,  5  Okl.  Cr.  6ul.  Where  a  party  has  been  deceived  or  entrapped  to 
place  a  witness  on  the  stand,  believing  that  he  will  testify  to  facts  favorable 
10  sucn  party,  and  the  witness  testifies  to  injurious  facts  conflicting  with  pre- 
vious statements,  the  party  can  introduce  in  evidence  statements  of  such  wit- 
ness conflicting  with  the  testimony  so  given,  on  the  ground  of  surprise,  under 
Ind.  T.  Ann.  St.  1899,  §  2016.  Id. 

46  Gritfis  v.  Whitson,  43  P.  813,  3  Kan.  App.  437. 

47  Harmon  v.  Territory,  79  P.  765,  15  Okl.  147. 

A  question  on  cross-examination  as  to  whether  witness  had  not  given  a 
different  account  of  the  affair  on  a  former  trial  may  well  be  ruled  out  as  im- 
material, since  that  evidence  couid  be  introduced  to  impeach  him,  without 
first  calling  his  attention  to  it.  Hughes  v.  Ward,  16  P.  810,  38  Kan.  452. 

When,  on  an  application  for  a  continuance  to  procure  the  testimony  of  an 
aosent  witness,  the  facts  set  up  in  the  affidavit  in  support  of  the  application 
are,  by  consent,  read  in  evidence,  in  behalf  of  the  party  making  the  applica- 
tion, as  the  deposition  of  the  absent  witness,  it  is  error  for  the  court  to  permit 
alleged  statements  of  the  witness,  made  out  of  court,  to  be  introduced  to  im- 
peach his  evidence  in  the  deposition,  his  attention  at  no  time  having  liven 
called  thereto,  and  he  having  had  no  opportunity  to  explain  them.  State  v. 
Bartley,  29  P.  701,  48  Kan.  421. 

48  Burckhalter  v.  Vaun.  *59  Okl.  114,  157  P.  1148. 

49  Testimony  of  prosecutrix  that  her  mother  told  her  that  defendant  threat- 
ened to  kill  them  uoth  if  they  appeared  against  him  held  competent  to  ex- 

(797) 


§  885  WITNESSES  (Ch.  14 

ness  gave  Material  evidence  for  plaintiff,  and  defendant  offered 
testimony  that  witness  had  previously  made  contradictory  state- 
ments, plaintiff  cannot  show,  to  corroborate  the  witness,  that  a 
few  days  after  the  occurrence  about  which  the  witness  testified  he 
had  made  statements  in  harmony  with  her  testimony  on  the  trial.50 

Pleadings  filed  in  another  action  by  one  of  the  parties  to  the  action 
being  tried  are  admissible  when  offered  for  the  purpose  of  impeach- 
ment.51 

Where  contradictory  statements  to  impeach  a  witness  consist  of 
writings,  they  are  the  best  evidence;  and,  in  the  absence  of  a 
showing  that  they  are  lost  or  destroyed  or  that  they  cannot  be 
produced,  parol  evidence  is  inadmissible.52 

plain  her  testimony  at  a  preliminary  hearing,  when  she  testified  to  defend- 
ant's innocence,  htate  v.  Marsee,  14-±  P.  833,  93  Kan.  600. 

50  Stirn  v.  Nelson,  70  P.  355,  65  Kan.  419. 

Where,  for  the  purpose  of  impeaching  a  witness  for  the  state,  the  defendant 
introduces  witnesses  who  testify  that  at  the  preliminary  examination  they 
heard  the  former  witness,  and  that  he  did  not  then  mention  the  facts  testified 
to  by  him  on  the  trial,  the  state  may  in  rebuttal,  call  other  witnesses,  also 
present  at  such  examination,  to  testify  that  they  heard  the  witness,  and  that 
he  did  then  mention  these  facts.  State  v.  McKinney,  3  P.  356,  31  Kan.  570. 

Where  it  was  sought  to  impeach  a  witness  for  plaintiff,  in  an  action  for 
damages  lor  wrongful  death,  by  showing  that  he  made  statements  before  the 
coroner's  jury  contradicting  his  testimony  at  the  trial,  plaintiff  could  show  in 
rebuttal  that,  before  the  accident  causing  decedent's  death,  witness  had  made 
statements  in  harmony  with  those  at  trial.  Board  of  Com'rs  of  Cloud  County 
v.  Vickers,  61  P.  391,  62  Kan.  25. 

si  Funnell  v.  Conrad  (Okl.)  176  P.  904. 

Where  plaintiff  filed  his  bill  of  particulars  on  April  16th,  alleging  that  de- 
fendant was  indebted  to  him  in  the  sum  of  $75,  and  on  May  19th  he  amended 
it  and  asked  $200,  and  defendant  offered  the  original  bill  of  particulars  as 
evidence,  an  instruction  that  the  pleadings  in  the  case  form  no  part  of  the 
evidence  was  error,  since  defendant  was  entitled  to  have  the  jury  consider  the 
original  bill  of  particulars  as  affecting  the  credibility  of  plaintiff  as  a  witness 
unless  the  discrepancy  in  the  pleadings  was  explained  to  the  satisfaction  of 
the  jury.  Leavitt  v.  Deichmann,  30  Okl.  423,  120  P.  983. 

"  Kuhn  v.  Poole,  112  P.  962,  27  Okl.  534. 

A  written  statement  by  plaintiff  soon  after  the  injury  held  admissible,  where 
it  was  inconsistent  with  material  parts  of  her  testimony  at  the  trial.  Chicago, 
R.  I.  &  P.  Ry.  Co.  v.  Points,  46  Okl.  234,  148  P.  720. 

A  letter  which  tended  to  contradict  the  testimony  of  the  writer  and  throw 
some  light  upon  such  testimony  held  properly  admitted.  Rice  v.  Woolery,  38 
Okl.  199,  132  P.  817. 

Plaintiff  sued  for  the  purchase  price  of  a  lot  in  a  new  town,  conveyed  by 
him  to  one  of  defendants.  The  defense  was  that  it  was  conveyed  in  considera- 
tion of  improvements  made  thereon.  Defendants  produced  as  a  witness  the 

(798) 


Art.  4)  CREDIBILITY  AND   IMPEACHMENT  §   885 

Where  the  'defendant,  for  the  purpose  of  impeaching  a  witness 
by  showing  contradictory  testimony  given  by  the  witness  upon  a 
former  trial  of  the  case,  offers  in  evidence  extracts  from  the  witness' 
former  testimony,  reading  the  same  from  the  official  transcript,  the 
prosecution  may  read  from  the  transcript  all  the  testimony  of  said 
witness  in  relation  to  the  facts  involved  in  the  alleged  contradiction, 
for  the  purpose  of  rebutting  such  attempted  impeachment.58 

In  a  criminal  trial,  the  transcript  of  testimony  given  at  the  pre- 
liminary examination  by  a  witness  who  testified  at  the  trial  should 
usually  be  admitted  in  evidence  to  discredit  his  testimony.54 

An  official  stenographer,  who  has  correctly  reported  the  testi- 
mony of  a  witness  at  a  former  trial,  may  read  his  notes  of  such  testi- 
mony to  impeach  the  witness  at  a  subsequent  trial  without  making 
a  transcript  of  the  notes.55 

It  is  competent  to  contradict  a  witness  by  reading  a  statement 
from  his  deposition  previously  taken  after  properly  calling  his  at- 
tention thereto.58 


agent  of  plaintiff  in  the  disposal  of  the  lots,  who  testified  that  he  had  had 
correspondence  with  plaintiff  concerning  this  matter ;  and  that  he  first  heard 
that  the  lot  was  sold  for  a  money  consideration  in  1885,  though  he  knew  it 
was  conveyed  in  1882.  Two  letters,  with  memoranda  attached,  dated  in  1882, 
were  identified  by  witness,  in  cross-examination,  as  his  handwriting,  directed 
to  plaintiff,  in  which  was  a  list  of  lots  sold,  to  whom,  and  for  what  price, 
which  contained  this  lot,  and  showed  that  it  was  sold  to  one  of  defendants 
for  $75,  and  not  paid  for.  Held,  that  they  were  competent  to  impeach  witness. 
Anthony  v.  Jones,  18  P.  519,  39  Kan.  529. 

53  Huntley  v.  Territory,  54  P.  314,  7  Okl.  60. 

54  State  v.  Berger,  124  P.  400,  87  Kan.  479,  judgment  affirmed  on  rehearing 
128  P.  208,  88  Kan.  406. 

Defendant,  desiring  to  attack  credibility  of  a  witness  examined  and  cross- 
examined  by  him  at  preliminary  examination,  and  at  a  subsequent  mistrial, 
but  who  was  absent  at  final  trial,  because  of  a  material  variance  between  his 
evidence  at  preliminary  examination  and  at  mistrial,  may  introduce  such  parts 
of  evidence  given  at  mistrial  as  show  a  variance.  Davis  v.  State,  15  Okl.  Cr. 
427,  177  P.  625. 

55  Johnson  v.  Moore,  52  Okl.  274,  15^  P.  1073. 

Where  a  witness,  when  asked  if  he  had  not  testified  differently  at  a  previous 
trial,  replied  that  he  did  not  remember,  evidence  of  the  stenographer's  notes 
taken  at  such  former  trial  is  admissible  in  impeachment ;  the  material  ques- 
tion being,  not  what  the  witness  remembers,  but  what  he  testified.  Johnson  v. 
Moore,  52  Okl.  274,  152  P.  1073. 

5  6  State  v.  Hoerr,  129  P.  153,  88  Kan.  573. 

Complete  parts  of  the  depositions  of  a  person  examined  as  a  witness  on  the 

(799) 


§  886  WITNESSES  (Ch.  14 

§  886.     Contradicting  witness 

A  witness'  answer  on  cross-examination  as  to  a  collateral  matter 
is  conclusive  and  cannot  be  subsequently  contradicted  by  way  of 
impeachment  by  the  party  putting  the  question.57 

Though  a  party  cannot  impeach  the  credibility  of  his  own  witness 
by  evidence  of  his  general  reputation,  he  may  show  the  truth  of  a 
particular  fact,  in  contradiction  to  what  such  witness  may  have  tes- 
tified as  to  it.58 

trial,  and  not  mere  detached  answers,  should  be  read  to  show  contradictory 
statements.     Terry  v.  Kansas  Gravel  Co.,  143  P.  485,  93  Kan.  125. 

Where  plaintiff  in  an  action  for  personal  injuries  makes  statements  on  the 
witness  stand,  substantially  different  from  those  contained  in  a  deposition 
whicn  he  admits  having  signed,  but  denies  the  entire  correctness  of,  refusing 
to  permit  defendant  to  read  in  evidence  those  parts  of  the  deposition  tending 
to  contradict  his  testimony  is  error,  whether  such  deposition  is  admissible  in 
evidence  or  not.  Southern  Kansas  Ry.  Co.  v.  Painter,  36  P.  731,  53  Kan.  414. 

57  Payne  v.  State,  136  P.  201,  10  Okl.  Cr.  314;    Willis  v.  State,  13  Okl.  Cr. 
700,  167  P.  333. 

If  a  witness  be  cross-examined  upon  a  collateral  matter,  evidence  will  not 
be  admitted  to  disprove  that  matter,  in  order  to  discredit  the  witness.  Atchl- 
son,  T.  &  S.  F.  R.  Co.  v.  Townsend,  17  P.  804,  39  Kan.  115 ;  State  v.  Ray,  37 
P.  906,  54  Kan.  160;  Same  v.  Zimmerman,  42  P.  828,  3  Kan.  App.  172;  Butler 
v.  Cooper,  42  P.  839,  3  Kan.  App.  145 ;  State  v.  Blakesley,  23  P.  570,  43  Kan. 
250. 

Evidence  should  not  be  admitted  to  contradict  a  statement  of  a  witness 
elicited  on  cross-examination  on  an  immaterial  collateral  matter.  State  v. 
McLemore,  164  P.  161,  99  Kan.  777,  judgment  reversed  on  rehearing  166  P. 
497.  101  Kan.  259. 

Where  defendant  offered  evidence  as  to  his  reputation  as-  a  peaceful,  law- 
abiding  citizen  his  denial  on  cross-examination  that  he  had  stated  that  he  was 
the  father  of  an  unborn  child,  bound  the  state  on  the  collateral  issue,  and  it 
was  error  to  admit  rebutting  testimony.  State  v.  Smith,  103  Kan.  148,  174 
P.  551. 

In  a  bastardy  proceeding,  defendant's  denial  of  improper  conduct  with  a 
young  girl,  not  the  relatrix,  after  offense  charged  was  purely  collateral  and 
binding  upon  the  state,  so  that  it  was  error  to  permit  it  to  contradict  the 
denial  by  evidence  of  another  distinct  offense.  State  v.  Stout,  101  Kan.  600, 
168  P.  853. 

58  William  Deering  &  Co.  v.  Cunningham,  65  P.  263,  63  Kan.  174,  54  L.  R. 
A.  410. 

Where  the  answer  and  the  evidence  of  defendant  tended  to  show  that  the 
price  at  which  a  stallion  nad  been  stood  was  one  of  the  material  warranties 
or  representations  in  the  contract  for  his  sale,  and  that  such  warranty  or 
representation  was  false,  and  the  seller,  while  a  witness  for  the  plaintiff  to 
maintain  other  issues  on  his  part,  denied  making  the  warranty  as  to  the  price 
at  which  the  stallion  had  previously  been  stood,  it  was  error  to  exclude  evi- 
dence contradicting  his  statement  as  bearing  upon  the  weight  to  be  given  his 
testimony.  National  Bank  of  Anadarko  v.  Oldharn,  109  P.  75,  26  Okl.  139. 

(800) 


Art.  4)  CREDIBILITY   AND   IMPEACHMENT  §§   886~888 

Where  an  impeaching  question  is  not  on  any  material  issue,  and 
it  does  not  tend  to  contradict  any  prior  statement  made  by  the  wit- 
ness, an  objection  thereto  should  be  sustained." 
§  887.     Prior  corroborating  statements 

Where  it  is  charged  that  the  evidence  of  a  witness  is  a  recent 
fabrication  and  is  the  result  of  some  relation  to  the  parties  or  cause, 
or  of  some  personal  interest,  his  evidence  may  be  supported  by 
showing  that  he  has  made  a  similar  statement  Before  that  relation 
or  motive  existed.60 

§  888.     Sustaining  evidence 

Where  the  veracity  of  a  witness  is  called  in  question,  it  may  be 
sustained  by  proof  of  his  general  reputation  for  truthfulness.81 

Such  evidence  is  admissible,  where  there  has  been  a  direct  attack 
on  his  character  by  evidence  that  his  reputation  for  truth  and  verac- 
ity is  bad,  or  where  the  witness  has  been  impeached  by  evidence 

69  Buckhalter  v.  Nuzum,  61  P.  310,  9  Kan.  App.  885. 

80  Driggers  v.  United  States,  95  P.  612,  21  Okl.  60,  129  Am.  St.  Rep.  823,  17 
Ann.  Gas.  66,  reversing  judgment  7  Ind.  T.  752,  104  S.  W.  1166. 

Statements  of  a  witness  made  out  of  court  cannot  ordinarily  be  shown  by 
another  witness  to  support  his  testimony.  Chapman  v.  Blakeman,  3  P.  277,  31 
Kan.  684. 

Evidence  of  statements  before  trial  by  witness  consistent  with  his  testimony 
is  not  admissible  in  support  thereof.  Jackson  v.  State,  12  Okl.  Cr.  40<>.  in? 
P.  945. 

The  testimony  of  a  witness  wjiose  credibility  is  attacked  may  be  supported 
by  evidence  that  he  made  similar  statements  about  the  time  of  the  occurrence 
testified  to.  Jones  v.  State,  9  Okl.  Cr.  646,  133  P.  249,  48  L.  R.  A.  (N.  S. )  204. 

After  introduction  against  plaintiff  in  an  action  of  impeaching  evidence 
tending  to  show  that  he  had  been  silent  concerning  his  claims  when  he  would 
most  likely  have  asserted  them  had  grounds  existed,  he  may  be  corroborated 
by  proof  of  previous  consistent  claims  and  statements  made  and  consistent 
conduct  exhibited  at  a  time  when  their  ultimate  effect  could  not  in  tde 
nature  of  things  have  been  foreseen.  National  Cereal  Co.  v.  Alexander,  89 
P.  923,  75  jvan.  537. 

61  Gilbert  v.  State,  127  P.  889,  8  Okl.  Cr.  329. 

Where  a  material  conflict  arises  in  the  testimony  of  two  or  more  witnesses, 
either  side  may  sustain  its  witness  by  proof  of  general  character  for  veracity. 
Gilbert  v.  State,  127  P.  889,  8  Okl.  Cr.  329. 

Where  testimony  of  a  witness  is  contradicted,  it  is  competent  to  support  his 
testimony  by  evidence  as  to  his  general  reputation  for  truth  and  veracity. 
Friel  v.  State,  119  P.  1124,  6  Okl.  Cr.  532. 

In  action  for  assault,  where  defendant's  testimony  contradicted  plaintiff's 
statements  on  cross-examination  as  to  her  reputation  for  truthfulness,  court, 
in  its  discretion,  might  permit  her  in  rebuttal  to  prove  her  good  reputation  for 
truthfulness.  Colvin  v.  Wilson,  164  P.  284,  100  Kan.  247,  6  A.  L.  R.  859. 

HON.PL.&  PBAC.— 51  (801) 


§  888  WITNESSES  (Ch.  14 

of  particular  acts  of  misconduct,  either  on  cross-examination  or  by  a 
record  of  conviction,  or  where  he  has  been  impeached  by  evidence  of 
corruption  on  his  part  in  connection  with  the  case  at  issue,  or  by 
contradictory  statements  admitted  on  cross-examination  or  shown 
by  the  testimony  of  other  witnesses.62 

Where  the  state  attacked  the  reputation  of  defendant,  who  was 
a  witness,  for  truth  and  veracity,  and  defendant  offered  to  prove 
that  his  "character"  for  truth  and  veracity  was  good,  an  objection 
on  the  ground  that  his  "reputation,"  and  not  his  "character,"  was 
involved,  was  improperly  sustained,  as  the  terms  are  frequently 
used  without  discrimination.63 

«2  First  Nat.  Bank  v.  Blakeman,  91  P.  868,  19  Okl.  106,  12  L.  R.  A.  (N.  S.) 
364. 

But  where  testimony  of  prosecuting  witnesses  had  been  thoroughly  im- 
•peached,  the  state  not  attempting  to  show  that  their  reputation  for  truth  and 
veracity  was  good,  the  admission  of  evidence  to  bolster  the  testimony  of  one 
of  the  prosecuting  witnesses  was  prejudicial  to  defendant.  Newton  v.  State, 
14  Okl.  Or.  569,  174  P.  289. 

63  State  v.  Tawney,  99  P.  268,  78  Kan.  855. 

(802) 


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